People v. Pompa-Ortiz

Decision Date03 July 1980
Docket NumberD,Cr. 21327,POMPA-ORTI
Citation165 Cal.Rptr. 851,612 P.2d 941,27 Cal.3d 519
CourtCalifornia Supreme Court
Parties, 612 P.2d 941 The PEOPLE, Plaintiff and Respondent, v. Ramonefendant and Appellant.

Enrique M. Ramirez, Santa Maria, and Ramirez & Valenzuela, for defendant and appellant.

Wilbur F. Littlefield, Public Defender, Los Angeles, Dennis A. Fischer, Deputy Public Defender, David J. Byers, Sullivan, Jones & Archer, San Diego, Margaret C. Crosby, Alan L. Schlosser, San Francisco, Amitai Schwartz and Fred Okrand, Los Angeles, as amici curiae, for defendant and appellant.

George Deukmejian, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., James H. Kline and Beverly K. Falk, Deputy Attys. Gen., for plaintiff and respondent.

MANUEL, Justice.

Defendant Ramon Pompa-Ortiz appeals from a judgment of conviction entered on a jury verdict finding him guilty of rape by force or violence (Pen.Code, § 261, subd. 2). We must decide whether defendant has a constitutional or statutory right to a public preliminary examination and, if so, whether denial of the right compels reversal of the ensuing conviction. We conclude that defendant has a statutory right to a public preliminary examination and that denial of the right renders the commitment unlawful within the meaning of Penal Code section 995. We conclude, however, that such illegality can be successfully urged as a ground of reversal on appeal only if it in some way prejudiced defendant at his subsequent trial. (Cal.Const., art. VI, § 13.)

Defendant was charged by complaint with rape and with two misdemeanor counts of driving while intoxicated and with a suspended license. Prior to the preliminary hearing, the People requested that the hearing be closed. The prosecutor stated no reason for the request. Over defendant's objection, the court ordered that the preliminary hearing be closed, noting that the closure was in the interests of both defendant and the victim. 1

The victim of the rape, defendant's cousin, was the only prosecution witness on that count. A police officer testified as to the misdemeanor counts. The only defense witness simply contradicted the victim's testimony that she had never gone dancing with defendant. Although the magistrate held defendant to answer on all counts, the prosecutor filed an information charging only the rape. Defendant moved to set aside the information under Penal Code section 995 2 on the ground that he had not been legally committed; the motion was denied. Defendant did not seek pretrial review by extraordinary writ. After jury trial, defendant was convicted as charged. On appeal he challenges only the ruling of the trial court in denying the section 995 motion. He contends that he was entitled to an open preliminary hearing on both federal and state constitutional grounds and pursuant to statute. Defendant cites no authority, and we find none to support the contention that an open preliminary hearing is compelled by the "public trial" language of the Sixth Amendment of the federal Constitution. 3 We turn, therefore, to an examination of defendant's rights under California law.

We must first emphasize that the instant case does not involve the right of the public and press to attendance at either a preliminary examination or trial. Nor are we presented with the question of a defendant's right to a public trial. Defendant's trial was open to the public; he makes no claim of error in the conduct of the trial itself.

I

It is settled that denial of a substantial right at the preliminary examination renders the ensuing commitment illegal and entitles a defendant to dismissal of the information on timely motion. (Jennings v. Superior Court (1967) 66 Cal.2d 867, 59 Cal.Rptr. 440, 428 P.2d 304 (§§ 865, 866-right to cross-examine and present affirmative defense); People v. Elliot (1960) 54 Cal.2d 498, 6 Cal.Rptr. 753, 354 P.2d 225 (§ 868-right to closed examination); People v. Napthaly (1895) 105 Cal. 641, 644-645, 39 p. 29 (§§ 858, 859-denial of counsel); People v. Phillips (1964) 229 Cal.App.2d 496, 501-502, 40 Cal.Rptr. 403 (denial of continuance to secure counsel); People v. Hellum (1962) 205 Cal.App.2d 150, 153-154, 22 Cal.Rptr. 724 (absence of counsel); People v. Bucher (1959) 175 Cal.App.2d 343, 346 P.2d 202 (§ 861-examination in one session); McCarthy v. Superior Court (1958) 162 Cal.App.2d 755, 758-759, 328 P.2d 819 (§ 866.5-failure to advise of right to counsel); People v. Williams (1954) 124 Cal.App.2d 32, 38, 268 P.2d 156 (§ 866.5-examination of defendant without counsel); People v. Salas (1926) 80 Cal.App. 318, 250 p. 526 (§ 858-denial of counsel).) Accordingly, we must determine whether a defendant has a right to an open preliminary hearing and, if so, whether that right is substantial within the meaning of the foregoing rule.

No statute specifically provides that the defendant is entitled to a public preliminary examination. 4 Several statutes appear to contemplate, however, that such examinations will be public. Section 867 gives the magistrate discretion to exclude other witnesses while one is under examination, 5 and section 868 requires the magistrate to exclude all but essential personnel upon request of defendant. 6

Although it has since been amended in respects not relevant here, section 868 was originally enacted as part of the Penal Code in 1872. It was based on section 161 of the Criminal Practice Act of 1851. The Code Commissioners stated that "The object of this section (868) is to carry out more fully the spirit of Sec. 867. The policy of the statute has always been to prevent the concocting of a charge against the defendant upon collusive or false testimony. The magistrate, with this view, may exclude witnesses while another witness is under examination. The object of that provision might be wholly defeated if, though not present, one witness might be informed of the testimony of another by persons who are present. Another advantage may result from this section. If the examination is necessarily public, the testimony will be spread before the community, and a state of opinion may be created which will render it difficult to obtain an unprejudiced jury. To guard the rights of the defendant against a secret examination, the section provides that it shall not be conducted in private, unless at his request." Although the commissioners' primary concern was obviously the right of the defendant to exclude the public so as to prevent fabricated testimony and to guarantee an unbiased jury, the clear implication is that absent a defendant's request for exclusion, the drafters intended the examination to remain open. 7

The requirement of an open preliminary hearing did not have its roots in constitutional antecedents, however, for at the time section 868 was enacted there was no state constitutional public trial guarantee and the doctrine of incorporation had not yet been developed to bring the federal constitutional right to state courts.

The California Constitution has since 1879 guaranteed criminal defendants "the right to a speedy and public trial" (art. I, § 15; § 13 prior to 1974). 8 The debates surrounding the adoption of the Constitution contain no hint as to whether the constitutional guarantee was intended to apply to anything other than the trial itself. The committee report with the original proposal merely noted: "Section thirteen has been provided for by inserting in place of the old section, already disposed of, that portion of the old section eight, in regard to the right of the accused in a criminal trial, and has been amended. The amendment consists in adding certain other usually enumerated rights, mostly taken from article six of the amendments to the Constitution of the United States, and which seem to have been omitted from that portion of the old section eight. We have also altered the clause in regard to putting a person twice in jeopardy, so as to remove any doubt, in case a jury on the trial should, for any reason, be discharged without rendering a verdict." (Debates and Proceedings, Cal.Const. Convention 1878-1879, p. 179.)

There is little case law directly in point. In the early case of People v. Tarbox (1896) 115 Cal. 57, 46 P. 896, defendant challenged the legality of his commitment pursuant to section 995 on the ground he had not been accorded his right to a public examination. The exclusion order had been made at the defendant's request. It was argued on appeal that he had no power to waive the state constitutional right to a speedy and public trial, then contained in section 13 of article I. In affirming the judgment, we stated, "There can be no question that defendant has the 'right' to a public examination before the committing magistrate, but under the provisions of the Penal Code above quoted (§ 868) he may waive that right whenever he deems it to his interest to do so." (115 Cal. at p. 62, 46 P. at p. 897.)

In People v. Weber (1924) 68 Cal.App. 680, 230 P. 180, the defendant urged on appeal that he had been denied his constitutional right to a public examination before the magistrate in that his examination was held in the offices of the warden at Folsom Prison. Since the record failed to show that the examination in the warden's office was closed to the public, the Court of Appeal affirmed the judgment without considering the correctness of the Tarbox language, which it recognized as dicta.

Our historical review persuades us that the Legislature at all times perceived there was a right to public preliminary examinations and drafted the statutes in light of that understanding. The only cases on point appear to accept that proposition as so obvious as not to require discussion. We conclude, therefore, that defendant had a right to a public preliminary hearing which he was denied. We also believe that that right was a substantial right the denial of which entitled him to have the information set aside pursuant to ...

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