People v. Superior Court

Citation78 Cal.App.4th 403,92 Cal.Rptr.2d 829
Decision Date18 February 2000
Docket NumberNo. H019369.,H019369.
CourtCalifornia Court of Appeals
PartiesThe PEOPLE, Petitioner, v. The SUPERIOR COURT of Santa Clara County, Respondent; Hikmat Mustafa Mouchaourab, Real Party in Interest. [And four other cases.<SMALL><SUP>*</SUP></SMALL>]

Office of the Public Defender, Jose R. Villarreal, Public Defender, Charlie Gillan, Deputy Public Defender, Attorneys for Real Party in Interest in No. H020156.

BAMATTRE-MANOUKIAN, Acting P.J.

In these original proceedings, we consider a significant issue of criminal procedure: to what extent may an indicted defendant obtain discovery of nontestimonial grand jury proceedings for the purpose of preparing a Penal Code section 995 motion to dismiss the indictment on grounds of lack of probable cause?1 Our Supreme Court has recognized that the grand jury's ability to consider the evidence impartially and independently in order to determine whether there is probable cause to indict may be prejudiced by the manner in which the prosecutor conducts the grand jury proceedings, including advice, instructions and argument. (People v. Backus (1979) 23 Cal.3d 360, 393, 152 Cal.Rptr. 710, 590 P.2d 837; Cummiskey v. Superior Court (1992) 3 Cal.4th 1018, 1022, fn. 1, 13 Cal. Rptr.2d 551, 839 P.2d 1059.) In light of this recognition by the Supreme Court, it follows that a defendant may review these communications between the prosecutor and the grand jury in order to prepare a motion to set aside an indictment on grounds of lack of probable cause under section 995.

Here respondent court ordered the People to produce, among other things, transcripts of all communications between the prosecutor and the grand jury the prosecutor's opening and closing remarks and argument, and all responses to requests by the grand jury for read-backs of witness testimony, as well as the superior court's answers to grand jurors' questions. Because such communications could have some bearing on the grand jury's determination of probable cause, and therefore on the defendants' ability to pursue their rights under section 995, we conclude respondent court acted within its discretion in making these orders.

However, respondent court made further orders compelling the People to produce records of all persons present during the grand jury proceedings, roll calls of the grand jurors, and the dates and lengths of grand jury deliberation sessions. Neither the identities of all persons present during the proceedings nor the dates and lengths of grand jury deliberations are grounds cognizable in a section 995 motion to set aside the indictment. The names of the individual grand jurors are likewise not relevant to such a motion. Since there exists no justification for violating the rule of grand jury secrecy in these respects, we conclude that these portions of respondent court's orders were an abuse of discretion.

As set forth below, we therefore deny in part the People's petitions for writs of mandate and grant them in part.

I. CASE SUMMARIES

We consider together five cases. In each case, the People voluntarily provided to defendant transcripts of the witness testimony, the district attorney's presentation of exculpatory evidence, the district attorney's admonishments regarding evidence admissible for a limited purpose, and the superior court's charge to the grand jury. Each defendant moved for an order compelling the district attorney to augment these transcripts by producing additional records and transcripts of the grand jury proceedings. The subsections below summarize the discovery sought and respondent court's orders in each case. The People petitioned for extraordinary relief from respondent court's orders, and we issued an alternative writ and order to show cause in each case, as well as a temporary stay of each order while our review was pending.

People v. Superior Court (Mouchaourab) (H019369)

On December 2, 1997, defendant Mouchaourab was indicted by the grand jury on charges of murder (§ 187), attempted murder (§§ 664/187), first degree burglary (§§ 459 and 460, subd. (a)), and grand theft (§§ 484/487, subd. (d)).

The People provided a copy of the transcript of witness testimony to defendant. Subsequently, defendant sought discovery of additional grand jury transcripts by making an informal written request to the district attorney for production of the following: (1) transcripts of the charge and instruction by the court to the grand jury at the time of indictment; (2) transcripts of any advice given or instruction in law given by the court or the district attorney; (3) transcripts of the roll calls or a list of names of the grand jurors present for each day of testimony, instruction, deliberation and return of a true bill; (4) a list of all persons present during each day of grand jury proceedings; (5) a record of when and for how long each session of grand jury deliberations occurred; (6) a transcript of the district attorney's opening and closing remarks and argument; (7) a record of all questions by grand jurors to the district attorney; (8) a record of all questions to the court by the grand jurors and the answers given by the court; (9) the jury list from which the grand jurors were chosen; (10) a list of names, street addresses and zip codes of grand jurors; (11) the actual system used for drawing juror names and to compose the grand jury; and (12) a list, record or transcript of the process by which prospective grand jurors were accepted, along with findings of qualifications and excusals granted.

The People voluntarily complied with requests (11) and (12) by producing a transcript of the grand juror impanelment proceedings and copies of orders replacing three jurors with alternates (with names redacted). The People also inadvertently produced a transcript of the superior court's charge to the grand jury, thus complying with request (1).2 However, the People refused to disclose any other portions of the grand jury record in response to defendant's requests. Defendant then filed a motion for an order compelling the People to augment the grand jury transcript with all records and transcripts sought in his informal request which the district attorney had refused to produce.

In ruling on defendant's motion, the trial court employed a balancing test and determined that defendant's right to information about grand jury proceedings outweighed the purpose for grand jury secrecy. However the court was concerned about privacy issues with regard to revealing the names of the grand jurors. Therefore, the court granted defendant's motion for augmentation as to all items requested, with the exception of the release of the names and identifying information of the grand jurors. Thus requests number (9) and number (10) were denied without prejudice to a further showing of necessity by defendant. As to request number (3), for roll calls or a list of the names of the grand jurors present for each day, the court granted the request in terms of how many grand jurors were present, but ordered that the names themselves be redacted. Finally, as to request number (5), for a record of when and how long each session of grand jury deliberations occurred, the court granted disclosure of "the record on the days the grand jurors met."

People v. Superior Court (Gracia) (H020156)

Defendant Gracia was indicted by the grand jury on April 21, 1999, on several counts, including lewd or lascivious act on a child under 14 (§ 288, subd. (a)), child endangerment (§ 273a, subd. (b)), cruelty toward a child (§ 273a, subd. (a)(1)), assaulting a child with deadly force (§ 273a, subd. (b)), murder of a child (§ 187), inflicting corporal injury upon a spouse (§ 273.5, subd. (a)), assault with a deadly weapon (§ 245, subd. (a)(1)), and false imprisonment (§§ 236/237).

After being provided with a record of the witness testimony, defendant filed a motion for augmentation of the record, which sought an order compelling the People to produce 12 additional items from the record of grand jury proceedings. This motion was virtually identical to the motion for augmentation filed by defendant Mouchaourab and included requests for: (1) transcripts of the charge and instruction by the court to the grand jury at the time of indictment; (2) transcripts of any advice given or instruction in law given by the court or the district attorney; (3) transcripts of the roll calls or a list of names of the grand jurors present for each day of testimony, instruction, deliberation and return of a true bill; (4) a list of all persons present during each day of grand jury proceedings; (5) a record of when and for how long each session of grand jury deliberations occurred; (6) a transcript of district...

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