People v. Silverband

• Decision Date: 05 June 1990
• Citation: 270 Cal.Rptr. 261,220 Cal.App.3d 1621
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Peter E. SILVERBRAND, Defendant and Appellant. Crim. C005413.

Page 261

270 Cal.Rptr. 261

220 Cal.App.3d 1621

The PEOPLE, Plaintiff and Respondent, v. Peter E. SILVERBRAND, Defendant and Appellant.

Crim. C005413.

Court of Appeal, Third District, California.

June 5, 1990.

Certified for Partial Publication. ^*

Review Denied Sept. 13, 1990.

[220 Cal.App.3d 1623] Handy Horiye, San Diego, under appointment by the Court of Appeal, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Arnold O. Overoye, Sr. Asst. Atty. Gen., Lisbeth Bellet and Karen L. Ziskind, Deputy Attys. Gen., for plaintiff and respondent.

SCOTLAND, Associate Justice.

A jury convicted defendant of first degree murder (Pen.Code, §§ 187, 189; further statutory references are to this code unless otherwise noted) with personal use of a firearm (§ 12022.5). The jury also found true the special circumstances that defendant killed the victim in retaliation for his testimony in a criminal proceeding (§ 190.2, subd. (a)(10)) and killed the victim while lying in wait (§ 190.2, subd. (a)(15)). Defendant was sentenced to a two-year state prison term for the firearm use plus a consecutive term of life without possibility of parole.

On appeal, he raises numerous allegations of prejudicial error, including a contention that the killing-in-retaliation-for-testimony special circumstance is inapplicable where, as here, the victim gave an oral statement under oath in lieu of a written affidavit in support of a search warrant. (§ 1526, subd. (b).) We shall affirm the judgment.

In the published portion of this opinion, we conclude that a hearing before a magistrate to obtain a search warrant pursuant to section 1526, subdivision (b), is a "criminal proceeding" within the meaning of the section 190.2, subdivision (a)(10) special circumstance, regardless of whether the hearing takes place before or after commencement of a criminal action. In the unpublished portions of the opinion, we reject defendant's other claims of error.

FACTS

In 1983, the Placer County Sheriff's Department began an investigation of Curtis Debord and others for illegal sales of automatic weapons and parts to convert semiautomatic weapons to fully automatic. Officers asked Roy Foreman, a confidential informant, to assist them by purchasing machine guns and machine gun parts from Debord.

Foreman did so, then appeared at a closed hearing before the Placer County Municipal Court to give oral testimony under oath in support of search and arrest warrants. Foreman's name was not revealed in the transcribed statement. The warrants were issued, and Debord and his wife were arrested for felony weapons violations.

After charges were filed, Debord's counsel successfully moved for disclosure of Foreman's identity as the informant who furnished the oral affidavit. Counsel then subpoenaed Foreman to testify at Debord's preliminary examination. Debord ultimately was convicted.

Thereafter, Foreman was murdered at his home in a rural area of Loomis. The homicide investigation implicated defendant, an acquaintance of Debord, as the killer. At trial, the prosecution introduced evidence which indicated that defendant was a professional assassin who had been asked by his friend Debord to kill Foreman in retaliation for his being a "snitch" and testifying against Debord.

DISCUSSION

I-VI ^**

VII

A Hearing In Which A Magistrate Takes An Oral Statement Under Oath In Lieu Of A Written Affidavit To Obtain A Search Warrant Is A "Criminal Proceeding" Within The Meaning Of Section 190.2, Subdivision (a)(10).

The information alleged as a special circumstance that the victim was a witness to a crime who was intentionally killed in retaliation for his testimony in a previous criminal proceeding. (§ 190.2, subd. (a)(10); hereinafter "subdivision (a)(10).") ⁹ The criminal proceeding referred to was the hearing before a magistrate in which the victim gave a statement under oath in lieu of a written affidavit to obtain a search warrant. (§ 1526, subd. (b).)

Defendant unsuccessfully moved to dismiss the special circumstance on the ground this hearing was not a "criminal proceeding" within the meaning of subdivision (a)(10) because no action was pending against the Debords until after the warrant was executed and they were arrested. He renews this claim on appeal.

Our point of departure is People v. Weidert (1985) 39 Cal.3d 836, 218 Cal.Rptr. 57, 705 P.2d 380, which holds that subdivision (a)(10) applies only to criminal, not juvenile, proceedings. Weidert emphasizes the familiar rule that when, as here, the statutory language is clear and unambiguous, there is no need for construction, and courts should not indulge in it. "Since the language of subdivision (a)(10) is clear, 'its plain meaning should be followed.' " (Id. at p. 843, 218 Cal.Rptr. 57, 705 P.2d 380, quoting Great Lakes Properties, Inc. v. City of El Segundo (1977) 19 Cal.3d 152, 155, 137 Cal.Rptr. 154, 561 P.2d 244.) Accordingly, our task is simply to decide whether the hearing at issue is a criminal proceeding. We conclude it is.

We begin with the most obvious clue: the placement within the Penal Code of the provision under which the victim gave his testimony. Oral affidavits in support of search warrants are authorized by section 1526, subdivision (b), which provides in relevant part: "In lieu of the written affidavit required in subdivision (a), the magistrate may take an oral statement under oath which shall be recorded and transcribed. The transcribed statement shall be deemed to be an affidavit for the purposes of this chapter." Section 1526 is contained in the chapter governing search warrants (beginning with § 1523), which is found in Title XII of part 2 of the Penal Code.

The fact that the Code Commissioners gave Title XII the caption, "Of Special Proceedings of a Criminal Nature," and this designation was approved by the Legislature in 1872 when it established the Penal Code, indicates that a section 1526 hearing is a criminal proceeding by virtue of its placement under Title XII. The titles, chapters and section headings enacted by the Legislature "are not merely editor's notes, but are integral parts of the code itself and must be consulted in ascertaining and interpreting the legislative will as expressed in the various sections." (People v. Richards (1927) 86 Cal.App. 86, 90, 260 P. 582; see also Kahrs v. County of Los Angeles (1938) 28 Cal.App.2d 46, 49, 82 P.2d 29; People v. Fink (1932) 121 Cal.App. 14, 16, 8 P.2d 493; 1 Witkin & Epstein, Cal. Criminal Law (2d ed. 1988) Introduction to Crimes, § 32, pp. 41-42.)

Next we look to the language of section 1526 itself. The section provides that an oral statement under oath in lieu of a written affidavit in support of a search warrant must take place in a hearing before a magistrate. Purely "a creature of statute" (§§ 807, 808), a magistrate "possesses only the limited jurisdiction and magistral powers conferred by the state Constitution and statute." (People v. Hawkins (1978) 85 Cal.App.3d 960, 965, 149 Cal.Rptr. 855; see also People v. Brandon (1989) 206 Cal.App.3d 1565, 1570, 254 Cal.Rptr. 504.) A review of these powers reveals that the duties of a magistrate are solely criminal in nature. (Hawkins, supra, 85 Cal.App.3d at p. 965, fn. 5, 149 Cal.Rptr. 855; 4 Witkin & Epstein, Cal. Criminal Law (2d ed. 1989) Introduction to Criminal Procedure, § 1809, pp. 2142-2143.)

That the Legislature has designated a magistrate to preside over section 1526 hearings, coupled with their inclusion within Title XII, signifies a legislative intent to make these hearings criminal proceedings. ¹⁰

This conclusion is consistent with another long-standing rule of statutory construction. Since the term "criminal proceeding" is not defined in the codes, we must look to the meaning these words bear in ordinary usage. (Title Ins. & Trust Co. v. County of Riverside (1989) 48 Cal.3d 84, 91, 255 Cal.Rptr. 670, 767 P.2d 1148; Valladares v. Stone (1990) 218 Cal.App.3d 362, 369, 267 Cal.Rptr. 57.) A proceeding is "a particular step or series of steps adopted for doing or accomplishing something." (Webster's Third New International Dictionary (1986) p. 1807.) In legal terms, a proceeding is defined "[i]n a general sense, [as] the form and manner of conducting juridical business before a court or judicial officer;" and more particularly as "[a]n act which is done by the authority or direction of the court ...; an act necessary to be done in order to obtain a given end." (Black's Law Dictionary (5th ed. 1979) p. 1083.) "Criminal proceeding" is defined in Ballantine's Law Dictionary (3d ed. 1969) p. 291, as a "proceeding in court in the prosecution of a person charged or to be charged with the commission of a crime, contemplating the conviction and punishment of the person charged or to be charged."

A section 1526 hearing meets each of these definitions. Here, it is undisputed that the hearing at which the victim testified was a necessary step law enforcement was taking in court to obtain the authority to search for and seize evidence to assist in the potential prosecution of a person (Debord) who was under investigation for the commission of a crime. Thus, a section 1526 hearing falls within the usual, ordinary meaning of the term "criminal proceeding."

It is a well-established rule of statutory construction that the enactors of a new statute are familiar with previous legislative enactments at the time the new statute is adopted. (Bailey v. Superior Court (1977) 19 Cal.3d 970, 977-978, fn. 10, 140 Cal.Rptr. 669, 568 P.2d 394; Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 334, 265 Cal.Rptr. 788.) Accordingly, we must presume that the drafters of subdivision (a)(10) and the voters who adopted it at the General Election of November 7, 1978, were aware that a section 1526 hearing is a criminal proceeding and, thus, the drafters and voters intended to include such hearings within the provisions of subdivision (a...