People v. Pearce

• Decision Date: 19 June 1970
• Docket Number: Cr. 16816
• Citation: 87 Cal.Rptr. 814,8 Cal.App.3d 984
• Parties: The PEOPLE, Plaintiff and Respondent, v. Wylie Lawrence PEARCE, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 814

87 Cal.Rptr. 814

8 Cal.App.3d 984

The PEOPLE, Plaintiff and Respondent, v. Wylie Lawrence PEARCE, Defendant and Appellant.

Cr. 16816.

Court of Appeal, Second District, Division 5, California.

June 19, 1970.

Hearing Denied Aug. 12, 1970.

Richard H. Levin, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Thomas Kallay, Deputy Atty. Gen., for plaintiff and respondent.

STEPHENS, Acting Presiding Justice.

After being charged by indictment, defendant was found guilty of possession of marijuana (Health & Saf. Code, § 11530) and sale of heroin (Health & Saf. Code, § 11501). He appeals from the judgment.

No recitation of the facts is required here, for there is no contention of insufficiency of the evidence, or other question raised necessitating reference to them. The contention on appeal is that 'Proceeding by Indictment is Unconstitutional.'

The Fifth Amendment of the United States Constitution provides in part that no person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment by a grand jury. The due process of such a method of accusation has been approved. (Smith v. United States, 360 U.S. 1, 79 S.Ct. 991, 3 L.Ed.2d 1041.) Article 1, Section 8 of the California Constitution provides in part that 'Offenses heretofore required to be prosecuted by indictment shall be prosecuted by information, after examination and commitment by a magistrate, or by indictment, with or without such examination and commitment, as may be prescribed by law.'

While prosecution by way of information after a preliminary hearing has been attacked as a denial of due process, it has been approved as a proper method of procedure. (Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232; People v. Stradwick, 215 Cal.App.2d 839, 30 Cal.Rptr. 791.)

Defendant urges that a person indicted is deprived of many of the rights afforded a person who is prosecuted after a hearing before a magistrate. He relies upon language in People v. Baker, 231 Cal.App.2d 301, 307, 41 Cal.Rptr. 696, 700: 'In our opinion, proceeding by way of information and preliminary examination is more substantial due process than proceeding by way of indictment.' The statement followed reliance upon Hurtado v. California, Supra, as determinative of one of the contentions then before that court. The instant question was not before the court in Baker, and it is our opinion that to stretch the meaning of the quoted sentence as authority here is to reach the breaking point of reasoning.

Defendant also quotes from Gray v. Hall, 203 Cal. 306, 318, 265 P. 246, 252: '* * * Due course of law under the state Constitution and due process of law under the Federal Constitution mean the same thing. (Griggs v. Hanson, 86 Kan. 632, 634, 121 P. 1094, 52 L.R.A.,N.S., 1161, Ann.Cas.1913C, 242.) It is the right of a litigant to have his cause tried and determined under the same rules of procedure that are applied to other similar cases, and when this is afforded to him he has no ground to complain that due process of law is not being observed. Estate of McPhee, 154 Cal. 385, 390, 97 P. 878.' He refers to Stanford Law Review (Vol. 8, p. 632): 'The Grand Jury as a social institution has been under attack in both the United States and England for more than a hundred years. (For a history of attacks on the Grand Jury, see Younger, The Grand Jury Under Attack, 46 J.Crim.L., C. & P.S. 26, 214 (1955).) It has been variously criticized as archaic, inefficient, cumbersome, irresponsible and costly. (See Miller, Informations or Indictments in Felony Cases, 8 Minn.L.Rev. 379, 383 n. 27 (1924); Morse, A Survey of the Grand Jury System, 10 Ore.L.Rev. 101, 346 n. 207 (1931).) It was abolished in England, the place of its birth in 1933. (Citing Administration of Justice (Miscellaneous Provisions) Act, 1933, 23 & 24 Geo. V, c. 36.)'

The criticisms quoted by defendant were not directly attacking the issue of deprivation of constitutional rights of defendants, but basically dealt with mechanical aspects of formation and composition of grand juries; the reference to criminal indictments contained in the Stanford Law Review article was very brief and certainly was not intended as an exhaustive consideration of the problem here raised. We believe that Smith v. United States, Supra, Hurtado v. California, Supra, and People v. Stradwick, Supra, adequately resolve the merits of the criticisms, all to the contrary. Keeping in mind that the consideration incident to the return of an indictment is not a trial but an inquiry into whether the charge should be made at all (People v. Dupree, 156 Cal.App.2d 60, 319 P.2d 39), to say that this procedure prejudices an individual fails to balance the benefits derived through lack of public accusation with that of confrontation of witnesses (Pen.Code, § 865) prior to a trial. The grand jury is an investigatory body, and 'in no case is the accused privileged to be confronted by his accusers. Indeed, he may not appear before the grand jury or produce witnesses in his own behalf as a matter of right.' (People v. Foster, 198 Cal. 112, 120, 243 P. 667, 670.)

The defendant contends that the proceeding against him by way of grand jury indictment constituted a denial of equal protection under the Fourteenth Amendment. But the safeguard of the equal protection clause is equality, rather than identity of rights and privileges. 'The meaning of this term ('equal protection of the law'), generally speaking, is that all persons under like circumstances shall be given equal protection and security in the enjoyment of personal and civil rights, * * * and the prevention and redress of wrongs. * * *' (Datta v. Staab, 173 Cal.App.2d 613, 623, 343 P.2d 977, 983.) However, '(e)xact equality is no prerequisite of equal protection of the laws within the meaning of the Fourteenth Amendment.' (Norvell v. Illinois (1963) 373 U.S. 420, 423, 83 S.Ct. 1366, 1368, 10 L.Ed.2d 456, 459.) There is no denial of equal protection, though the grand jury indictment and the preliminary hearing indictment procedures are different in form. '* * * (A) bsolute equality is not required; only 'invidious discrimination' denies equal protection (under the constitution).' (Emphasis added.) (People v. Shipman, 62 Cal.2d 226, 232, 42 Cal.Rptr. 1, 4, 397 P.2d 993, 996; accord, Douglas v. California (1963) 372 U.S. 353, 356, 83 S.Ct. 814, 9 L.Ed.2d 811, 814.)

The classifications prohibited by the equal protection clause...