*1 S019774. Dec. [No. 1991.] BOWENS, Petitioner,
ROBERT v. COUNTY, THE ALAMEDA SUPERIOR COURT OF Respondent; PEOPLE, THE Party Real Interest.
Counsel Gaskill, Defender, Friedman, Jay B. Public and Harold G. Assistant Public Defender, for Petitioner.
No appearance for Respondent. Williamson, General, Chief Assistant George Daniel E. Lungren, Attprney General, General, Clifford Attorney John Assistant Attorney Sugiyama, H. Sullivan, General, Real for Attorneys K. and Laurence K. Thompson Deputy Party Interest. Reiner, (Los George
Ira District B. Sondheim and Harry Attorney Angeles), Size, G. District Kent S. and Charles L. Attorneys, Scheidegger Deputy as Amici Curiae behalf Real Party Hobson on Interest.
Opinion
whether,
LUCAS, C.
In thiscase
resolve the issue of
light of
J.
June
of an initiative measure
on the
adoption
designated
ballot
*4
Act,”
115 and identified as the “Crime
Victims Justice Reform
an indicted defendant
may
is entitled to or
receive a postindictment prelim
inary hearing
Superior
the courts of this
Whitman
state.
also
v.
Court
160,
(1991)
challenges 115].) to Prop. will
As appear, conclude that newa constitutional provision enacted by Proposition 115 has abrogated the holding Superior of Hawkins v. Court that, Cal.3d 584 (Hawkins) P.2d and 916] such, to, defendant indicted California no longer entitled and afforded, indeed may not be a postindictment any or preliminary hearing other similar procedure. Facts
I.
10, 1991,
On January
filed
People
a grand jury indictment charging
petitioner with
Code,
two
(Health
counts of
heroin
&
selling
11352),
Saf.
§
and further
Code,
had
alleging he
(Pen.
suffered a prior conviction
1203.07,
(a)(3)).
subd.
§
The acts were
have
alleged occurred on or about
December
and December
1990. At his arraignment, petitioner
moved for a postindictment preliminary
hearing, asserting
his equal
Hawkins,
had
rights
been violated
supra,
under
The Court of denied for a writ Appeal summarily petitioner’s application all stayed mandate and/or and for We prohibition request stay. proceed- in the trial court and issued alternative writ mandate to consider ings an constitutional and important interpretive questions presented. Background
II. The California Constitution sanctions the prosecution expressly Const., I, 14; Hawkins, (Cal. cases see also by grand jury indictment. art. 593.)1 In there Cal.3d this court concluded is a “considerable defendants disparity charged afforded procedural by by charged means of an information and defendants prosecutor by grand (22 an indictment. We noted jury Cal.3d at omitted.]” [Fn. the Penal Code those although ultimately charged defendants provided “ with by information over ‘a neutral and preliminary hearing presided by knowledgeable or legally magistrate, representation retained appointed counsel, witnesses, the confrontation and cross-examination of hostile opportunity personally appear affirmatively exculpatory present ” “ [citations],’ evidence ‘impressive code failed a similar provide ” (Ibid.) array rights’ to defendants indictment. We procedural charged by that, held “an accused is denied laws guaranteed of the Constitution when prosecution California *5 indictment and he hearing is of a and the deprived preliminary [or she] (Id., which rights concomitant attach when is information.” prosecution by 586-587.)2 pp.
We in concluded until Hawkins that the Legislature prescribed for indicted the appropriate procedures defendants for by grand jury, the violation equal protection “simply was the indictment permit process [had], to continue as it but to of indicted precisely recognize defendants to demand a postindictment hearing prior or at the (Hawkins, time entering supra, 593-594.) a If plea.” Cal.3d at pp. defendant amade a the indictment timely request preliminary hearing, for would be refiled as a complaint, thereby provisions triggering Code, Penal (Pen. Code for a providing preliminary hearing 859 et seq.). (Hawkins, Cal.3d at p. 1990,
Hawkins state of law June when the represented voters 115, enacted Proposition the California Constitution. thereby amending I, 14) 1Article (article section 14 of the provides: California Constitution section law, or, prosecuted “Felonies provided shall be by either indictment after examination by magistrate, commitment a by information.” (the clause) 2Article 7 of section Constitution state equal California provides: person may “A not be . . . . . . .” denied of the laws I of the California 115 added section 14.1 to article Proposition (article 14.1), “If a Constitution which states: expressly indictment, prosecuted by postindictment preliminary there shall be no whether, hearing.” following issue we address this case is 115, enactment of entitled to or may an indicted defendant is receive a under the federal and state postindictment preliminary hearing Constitutions.
III. Discussion A. Federal Constitutional Issues Constitution,
We first discuss the issues raised under the United States namely, whether the Fourteenth Amendment de- mandates an indicted fendant have the to receive a opportunity hearing postindictment preliminary and the concomitant that attach when information. prosecution We conclude that the Fourteenth Amendment mandates no such procedure. courts, Court,
Federal the United including States have Supreme long held that the due process clause of the Fourteenth Amendment does not require state to afford preliminary hearings to criminal defendants (See, first instance. e.g., Lem Woonv. Oregon 229 U.S. 590 [57 783]; L.Ed. 33 S.Ct. see Pugh (1975) also Gerstein v. 420 U.S. 54, 67-68, 118-119 854]; L.Ed.2d 95 S.Ct. United States v. Farries (3d 1972) 1061-1062; Cir. 459 F.2d Rivera Virgin v. Government of (3d Islands 1967) 989-990; Proc., Cir. 375 F.2d Fed. Rules Crim. rule 5(c), U.S.C.)
Nor is the Fourteenth
guarantee
Amendment’s
of equal protection
of the laws violated
by system which defendants prosecuted
indict
*6
ment are not afforded a preliminary
and the
hearing
concomitant
attach when prosecution is by information.
state
Nearly every
and federal
court that has considered this federal equal protection issue has come
the
same
(See,
conclusion.
e.g., United States ex
(N.D.Ill.
rel. Kline v. Lane
1989)
368;
707 F.Supp.
United
(E.D.Pa.
States v.
1981)
Simon
510 F.Supp.
232; State v.
(1981)
Clark
810],
42
552,
People
In a claim Amendment’s guaran based on Fourteenth analyzing laws, tee of must first determine the appropriate 330, (Dunn (1972) standard of review. v. Blumstein 405 U.S. 335 [31 review, 995].) L.Ed.2d 92 The S.Ct. standard of as devel proper court, in, oped involved and high depends classification upon (Ibid.) interests affected law. law will by, challenged challenged be subject to strict if scrutiny only it of a operates peculiar disadvantage (see, 1 suspect e.g., Loving Virginia (1967) class v. 388 U.S. L.Ed.2d [18 1010, 1817]) (see, 87 S.Ct. or a impinges e.g., on fundamental Dunn v. right Blumstein, supra, 330). 405 U.S.
The determination of whether a class focuses on whether suspect exists system alleged of discrimination the class it defines have of [any] “[t]he the traditional indicia suspectness: of as a saddled with such [such class] disabilities, treatment, subjected or to such a history purposeful unequal or such relegated to as to position powerlessness command political (San extraordinary majoritarian from the Anto political process.” 16, 39-40, nio School v. Rodriguez (1973) Dist. U.S. L.Ed.2d 28 [36 1278].) 93 S.Ct. system Clearly, prosecution contemplated by sections 14.1 of the California does Constitution not single out a (See class within the suspect meaning this definition. United States Lane, ex supra, 373.) rel. Kline v. F.Supp.
Nor does denial of the preliminary hearing implicate procedure fundamental under (See the United States Constitution. United States ex Lane, 368; rel. supra, Kline v. Pugh, supra, see also Gerstein v. F.Supp. 103; Lem U.S. Woon Oregon, v. To the contrary, U.S. the use of the grand jury indictment without a cases preliminary hearing involving punishment serious rule at law. was the common Smith v. 1041, 1047-1048, (1959) United States 360 U.S. L.Ed.2d 79 S.Ct. Moreover, 991].) the process of indictment grand jury guaranteed by courts, Fifth Amendment certain prosecutions federal “the showing high place system of grand held an instrument jury [the indictment] justice.” (Costello v. United States 350 U.S. L.Ed. 362 [100 *7 401-402, 406].) 76 It S.Ct. would anomalous court be for this to construe this constitutionally sanctioned felony charging procedure somehow that very mechanism denies defendants fundamental under the United Lane, States Constitution. United ex States rel. Kline v. supra, 707 368, 373.) F.Supp.
Therefore, to indicted hearings the state’s denial of preliminary because nor en class suspect of a disadvantage neither works to the defendants a rational basis need assert only fundamental right, People croaches on a 14.1, its to establish seeking enactment of article section for the neither a suspect burdens “In where a classification cases constitutionality. interest, to overturn reluctant quite a fundamental ‘courts are nor group that it denies ground equal action on governmental ” _ 430, 410, _, L.Ed.2d (Gregory (1991) v. 501 U.S. [115 laws.’ Ashcroft 93, 97 2395], (1979) 440 U.S. Bradley [59 v. quoting S.Ct. Vance 171, 176, 939]; U.S. Stanglin Dallas v. L.Ed.2d 99 S.Ct. see also 18, 26-27, L.Ed.2d 109 S.Ct. 14.1, scruti- federal muster when Article constitutional passes legitimate under the We an abundance of perceive nized rational basis test. indictment procedure for the state’s use of the justifications discretionary state’s inter- initiate are the Among justifications those prosecutions. cause without un- ests in a determination of “obtaining probable pretrial Lane, (United ex rel. Kline v. taxing state’s resources” States necessarily 373) justice and “a which swift F.Supp. creating system 5, 1990)). The elimi- (c), (June and fair” subd. Gen. Elec. (Prop. § hearings clearly nation of the requirement postindictment serves these goals.3 interests,
These state related to the of indict- legitimate rationally system ment our conclusion by grand jury hearing, without a preliminary compel that the alternative sections charging procedure contemplated by 3historically, grand jury process utilization of the indictment has served a number of important goals. Jury voting upon proposed “The deliberations of indict the Grand and its Code, required by ments are private seq.] law to be in session. et It is [Pen. § [Ü significant secrecy prohibited government. Secrecy exists every almost other arm of as to the Jury agency designed only Grand because it is an not to search out offenses and accusations upon inability which would not otherwise be acted because of the fear or bring complaint, protect persons publicity individuals to but also to innocent from the might charges (Charge otherwise occur to the eventually proven when are to be unfounded.” Jury 17-18.) Grand also serves County, pp. grand jury process L.A. indictment integrity ongoing investigations, to maintain the or undercover sensitive criminal flight jurisdiction investigation (e.g., through to thwart from the the use of suspects under indictments; Code, 924). sealed charges see Pen. It is utilized when the involve frequently official, allegations by public requires testimony of misconduct the case from witnesses who are county, difficulty interviewing nonresidents of the there is a hostile witness whose testimony may prove prosecution, charges vital to the the nature of the are of unusual or 1982-1983, (Final 42-43.) complexity. Report, County Jury, pp. L.A. Grand process prosecution by There are other differences between the indictment information. prosecutions Whereas the latter generally prosecutorial are initiated local and law enforce- agencies, Attorney grand ment special may jury General or a counsel initiate indictment Code, (Pen. proceeding. 936.5.) §§
44 the and 14.1 does not violate Fourteenth of the California Constitution the United States guarantee Amendment’s of of laws. equal protection Simon, Lane, 368; supra, v. supra, ex rel. Kline v. 707 United States F.Supp. Robinson, 232; Clark, 810; State P.2d State v. F.Supp. supra, v. 953; Shober, 393; supra, supra, People 417 A.2d United States 489 F.Supp. v. Franklin, State, 1152; 1071; supra, supra, v. 398 N.E.2d Seim 590 P.2d v. Reiman, 860; supra, State v. 284 N.W.2d v. District Court Eastern Lataille of 26; 877; Hampden, supra, Chung Ogata, supra, 320 N.E.2d v. 764.) McCloskey, supra, Commonwealth v. next consider A.2d We whether a state constitutional a right hearing to postindictment preliminary I, has survived the article passage of section 14.1.
B. State Constitutional Issues to a postindict assertion a constitutional state
Petitioner’s ment preliminary hearing solely is based on the rationale equal protection Hawkins, in supra, our decision Cal.3d He maintains the Hawkins 584. (1) holding violation, finding divisible into two of an parts: equal protection in created the court remedy response I, According violation. article section 14.1 was directed petitioner, solely Hawkins, in at the created of an remedy underlying finding equal not 14.1, I, if violation. He claims sole effect of article section valid, is to eliminate the hearing as a postindictment preliminary proper for the in equal protection violation that we found Hawkins. I, 14.1,
We that the enactment disagree of article had such limited The only effect. reasonable 115 is that interpretation article section 14.1 was intended to purposefully abrogate equal protection analysis the substantive of Hawkins. underlying holding
The express mandate of article
section 14.1—that
“[i]f
indictment,
prosecuted
there
shall be no postindictment preliminary
hearing”—is
inconsistent with
inherently
this court’s
interpretation
of the state
scope
clause
Cal.3d
equal protection
(Cf. Izazaga, supra,
587.
45 so as be construed reasonably can provisions constitutional “[W]hen Priest conflict, (Serrano v. adopted. should be such a construction to avoid 1241, 601, 584, 41 A.L.R.3d 487 P.2d (1971) Cal.Rptr. 5 Cal.3d 596 [96 727, 735 (1988) 45 Cal.3d 1187]; Deukmejian [248 Lungren v. see also recent, conflict, 115, 299].) avoiding a means of As Cal.Rptr. limit thereby to and carve out an exception is deemed to specific provision 42 Cal.3d older, (1986) People v. Valentine (See, e.g., an general provision. Priest, 25, 913]; 5 Cal.3d supra, v. P.2d Serrano 720 181 [228 Airlines, 596; Cal.2d Western Inc. People at v. p. 371.) at 723].)” (Izazaga, supra, p. 54 Cal.3d
P.2d
indicted defendant be
mandates that an
To the extent Hawkins
article
of
adoption
the voters’
hearing,
afforded a postindictment preliminary
I,
holding,
limiting
that
abrogating
must be seen as
section 14.1
Const.,
I,
(Cal.
art.
of the state constitutional
scope
(Cf.
7)
mandated indictment
constitutionally
process.
as it relates to the
§
Valentine,
371;
supra,
Cal.3d
Izazaga, supra,
People
54 Cal.3d at
v.
p.
14.1,
I,
181.)
thereby
also limits and
article
pp.
Similarly,
I,
in
contained
article
based on the due
clause
precludes
challenge
process
Constitution,
in
section 7 of the
an issue not reached
court
California
584, 586.)4
(See
supra,
Hawkins.
Cal.3d
in
This
full effect to the intent of
electorate
gives
interpretation
The
intent
115 and article
section 14.1.
manifest
passing Proposition
in
behind the
criminal cases
hearings
measure was to prohibit preliminary
indictment. The voters’ intent is clear from
words
prosecuted by
Moreover,
with the general
section 14.1.
this prohibition comports
intent
and fair.
voters “to create a
which
is swift
system
justice
115, 1,
(c).)
. . .”
(Prop.
contemplated
subd.
Proposition
plainly
§
(See,
abrogation
e.g.,
of Hawkins as well as other
decisions of this court.
past
Izazaga, supra,
372.)
We therefore conclude that article section California, 22 Cal.3d holding has the abrogated denied the equal no deemed longer such that an indicted defendant is I, California Constitu- under article section 7 of the of the laws protection tion, prelim- receive a postindictment virtue of the defendant’s failure to inary hearing. I, 14.1 was that article section rejected argument
Having petitioner’s equal in and not its underlying directed at the created Hawkins solely remedy to this court to his invitation reject must likewise protection analysis, he violation an alternative to redress the remedy fashion I, section 14.1. survived the enactment of perceives having hearing” for Petitioner contends we could fashion a “quasi-preliminary hearing the According quasi-preliminary indicted defendants. to petitioner, officer, would be a neutral the defendant judicial would be held before evidence, and present exculpatory counsel and represented by permitted cause to bind the establishing probable would bear burden of prosecutor the defendant offense. alleged over for following
We hearing” conclude that such a mandating “quasi-preliminary I, under article section indictment would be unconstitutional by grand jury Our constitutional interpreting provisions adopted 14.1. task primary (See the intent of the voters. give initiative is to determine and effect to so, (1936) 1278].) To do Hopkins Kaiser v. 6 Cal.2d P.2d [58 undermine its constitutional should not be construed so as to provision Communications, Fran (ITT City County World Inc. v. and 226, San validity. cisco Cal.3d 811] [ITT Communications].) World Article section 14.1 prohibits “postindictment includes preliminary hearing[s].” necessarily postindictment This prohibition that closely as well as all other yHtisi-preliminary hearings, procedures under resemble of the nomenclature legal preliminary hearings, irrespective render mean which such are cloaked. To hold otherwise would procedures 14.1, the intent thereby of article section subvert ingless language Communications, ITT (See World voters 115. passing Proposition supra, 37 Cal.3d at p. equal
Petitioner also asserts that this court could perceived This down all indictments. simply striking grand jury violation by refile indictments as and would complaints would force all prosecutors defend- charging means of grand jury system eliminate the as a effectively in the of this state. ants courts I, section reached of article scope
The conclusion we have
respecting
note,
14.1,
We
this proposal.
obviates the
to further consider
necessity
however,
all
indict-
grand jury
that it is
down
entirely unjustifiable; striking
115.
ments was
not the intent of the voters
patently
adopting
538.) If the
intended to
Hopkins, supra,
Kaiser v.
voters
eliminate
of article
grand jury
through
indictments
adoption
14.1, it would be
include in
illogical
very
language
provision
contemplates
continued
indictment
vitality
grand jury
process
*11
indictment,
(“If
the courts of this state
there shall
felony
prosecuted by
Moreover,
be no
a constitutional
postindictment preliminary hearing.”).
provision generally should not be construed to
another
impliedly repeal
Communications,
(ITT
supra,
constitutional
World
Cal.3d at
provision.
37
865.)
all
render
p.
Striking
grand
indictments as unconstitutional would
jury
I,
(ante,
40,
1)—the
without effect article
the
section
at
fn.
of
p.
provision
state Constitution that
sanctions
of
cases
explicitly
prosecution
by
Hawkins,
grand
(See
593.)5
indictment.
jury
supra,
Cal.3d at p.
Petitioner’s reliance
re
on In
Lance W.
protection than to vindicate purpose The Hawkins serves no remedy hearing. In opinion. rights perceived defendant’s indicted severable, and Lance W. short, in Hawkins are not right therefore inapposite.
Last, of Hawkins analysis claims the equal protection petitioner Raven, supra, decision of our light survives Proposition to amend sought 3 of Proposition 336. Section state certain enumerated adding language California Constitution defendants, equal including of criminal rights constitutional laws, federal with the consistently shall be construed Raven, 3 of Proposi Section supra, 52 Cal.3d Constitution. not be construed could further that the state Constitution tion 115 provided afforded than those rights defendants greater criminal or juvenile to afford Raven, 3 of (Ibid.) In we held that section the federal Constitution. California Constitu invalid revision of the an represented remainder of the from the the invalid section tion. We struck and severed measure, vitality independent the continued thereby acknowledging initiative (52 Cal.3d pp. enumerated therein. the state constitutional *12 355-356.) I, 336, Raven, that argues supra, petitioner on
Relying on severed “functionally dependent” invalid because it is section 14.1 is also 115 3 of Proposition He claims section 3 of 115. Proposition section inter- clause as limit the of the state scope to attempted I, to elimi- attempts 14.1 merely in whereas article section preted in to the equal protection in Hawkins response nate the created violation. Hawkins is of holding reliance on Raven to resurrect
Petitioner’s a constitu- adopting In intent the voters determining the of unavailing. initiative, the words of must first look to the court by tional provision if is further the answer and need look no constitutional at issue provision its words. meaning of ordinary in the natural and unambiguous clear and 727, 735; ITT also World see Deukmejian, supra, v. Cal.3d Lungren I, Communications, is clear section 14.1 Article supra, 37 Cal.3d indictment, be no there shall “If a felony prosecuted by and unambiguous: meaning ordinary The natural and hearing.” postindictment preliminary following grand hearings it is obvious: provision prohibits 14.1 to the state of article section indictment. With the addition jury courts, Constitution, by nor the unless Legislature compelled neither the Constitution, mandate may preliminary hearings United States (Runyan) Municipal Court (See People v. indictment. by matters prosecuted A.L.R.4th Cal.3d 681].) 14.1 of article wording or find the structure nothing
We “functionally render it of the voters part manifests an intent on the contrary, 115. To 3 of Proposition the invalidated section on dependent” “If any provision clause that states: 115 contains a severance Proposition is held or circumstances thereof to any person this measure or the application invalid, or provisions applications shall not affect other invalidity or provision applica- without the invalid given which can be measure effect tion, (Prop. this measure are severable.” this end the provisions In 115, 29, is clear. the severance clause added.) The intent behind italics stated, can clearly remaining Proposition provisions Raven “[t]he of” invalidated or regard validity operation be effect’ without ‘given (Raven, 355.) Article 52 Cal.3d at section 3 of 115. Proposition in Raven. holding our section 14.1 has not been invalidated Disposition IV. Constitutions, follow that under the federal and state We conclude California, indicted an the enactment of voters ing receive, to, defendant entitled and indeed not may postindictment is not this state. similar the courts of procedure or preliminary hearing any writ this court on May the alternative of mandate issued Accordingly, and the writ is denied. order of discharged, peremptory Court of is affirmed. Appeal
Panelli, J., Kennard, Arabian, J„ Baxter, J., J., J., George, and concurred. MOSK, every wrong I dissent.It is a maxim of that “For jurisprudence J. Code, (Civ. the to majority purport there is a remedy.” Today, clause of article fabricate an for violations of the equal protection exception cannot, I and will the In such a labor section of California Constitution. not, join.
I In 586-587 Superior Hawkins v. Court 916], denied the that “an accused is concluded 7, of the the guaranteed by laws equal indictment and he is deprived Constitution when is prosecution by California attach when of a and the concomitant which preliminary hearing information.” prosecution by
The holding disparity basis of our was that there was a “considerable the charged by prosecutor by afforded defendants procedural rights in an grand jury means of an and defendants charged by information indictment. The defendant accused information becomes ‘immediately a including entitled to an impressive array procedural rights, knowledgeable magistrate, representa- before a neutral and hearing legally counsel, and cross-examina- tion retained or the confrontation appointed witnesses, tion of hostile and the personally appear opportunity affirmatively present exculpatory evidence.’ [1] In vivid contrast, the indict- (22 at ment omits all the above . . . .” Cal.3d procedure safeguards omitted.) in original, italics fn. and citations In we further for the remedy concluded that “appropriate infirm treatment of indicted defendants is not to eliminate or constitutionally indeed, alter radically jury; function of the general indicting grand function is sanctioned the California Constitution and explicitly specifi- cally Legislature may Until such time as the implemented by Legislature. with the most consistent prescribe appropriate procedures, state Constitution as a whole and least intrusive on the Legislature’s prerog- ative as it the indictment to continue simply permit process precisely has, but to indicted defendants to demand a recognize post- indictment to or at the time of preliminary hearing prior entering . . . plea.
“The state constitutional provision recognizing grand jury’s indicting function—article section 14—is no bar to our herein. It holding provides, or, law, ‘Felonies shall be either indictment prosecuted provided by after examination and commitment information.’ by magistrate, by ‘law,’ course, term as well as encompasses judicial legislative decisions Thus, enactments. while the Constitution the use grand juries authorizes defendants, indict criminal it the task Legislature leaves to the the courts of developing procedures, consistent with other state constitutional provi- sions, (22 for implementing that mode of Cal.3d initiating prosecutions.” 593-594, omitted.) citations pp. *14 5, 1990, Election,
At the June an initiative Primary voters approved constitutional amendment and statute that was on the ballot as designated Proposition 115—the “Crime Victims Justice Reform Act.” self-styled I
Section of the measure added article of the California section 14.1 to indictment, “If Constitution: a there shall be no prosecuted by postindictment preliminary hearing.” to relevant text following add the initiative to purported
Section 3 of the of a right[] “In cases the criminal article I of the state charter: of be construed by . . . shall of the laws defendant to the United with the Constitution this state a manner consistent courts of to afford the courts not be construed States. This Constitution shall the Constitution defendants than those afforded to criminal greater rights . . .” of the United States . charter, I of the state initiative added section 30 to article
Section 5 of the admitted at be (b) hearsay may in subdivision thereof that to provide examinations, or legislation popular as prescribed regular preliminary initiative. Code, the Evidence to the measure added section 1203.1 to
Section 8 of code, the cross-exami- generally allowing that section 1203 of provide declarants, not at examinations. hearsay applicable preliminary nation of the Penal Code on Section 16 of the initiative amended section 866 of First, at a three relevant here. on the the defendant points People’s request, examination must make an offer of as to the preliminary proof expected witness, if call the witness his only of a testimony may subsequently crime, a negate would be to an element of testimony reasonably likely declarant, a an affirmative prosecution witness or or establish impeach Second, discovery. defense. examination not be used for preliminary may Third, the is not or authorized. taking depositions compelled initiative, in (b)
Section 18 of the added a new subdivision pertinent part, Code, to section 872 of the Penal which allows hearsay preliminary examinations if certain given by law enforcement officer who satisfies requirements.
II Alameda, On January the Grand on behalf Jury County handed an indictment court People, up superior against peti- counts, tioner Robert heroin, In selling Bowens. it accused Bowens of separate in violation of Health and December Code section on Safety 7,1990. 4 and It that he had conviction of separately alleged prior suffered of narcotics for sale within the of Penal Code section possession meaning 1203.07, (a)(3) subdivision for or (ineligibility probation suspension 11370.2, sentence) (a) and Health and Code section subdivision Safety (enhanced punishment).
At arraignment, Bowens moved the court for a superior postindictment examination relief the vio- any or appropriate lation of his state constitutional construed equal protection, *15 Hawkins, an examination prior out of the of such arising deprivation He indictment. was unsuccessful. the First District for Appellate
He then the Court of for petitioned Appeal court, and re- a writ of mandate and/or prohibition against superior unsuccessful, denial. meeting summary a There too he was with quested stay. Here, a stay. he this court for review and Thereupon, petitioned requested in light Proposition he was successful. We limited the issue to “whether defendant examination or is entitled to a post-indictment preliminary writ of man- We then directed issuance of an alternate any remedy.” date. The writ issued.
Ill IAs shall court erred Bowens’s motion explain, superior by denying and the Court of erred his Even after Appeal by refusing petition. Proposi- the laws under article tion there is a violation of the are pros- of the California when some defendants Constitution are by pros- ecuted information after a examination and others A ecuted indictment without such examination. violation of this sort by any avoided, however, If A can not it must be remedied. obviously be avoided. for the examination is no available postindictment preliminary longer pur- but other mechanisms are. pose, whether,
The initial be addressed is after question Proposition there equal protec- remains the violation of the state constitutional tion found Hawkins. The answer is affirmative.
Recall that at the time of there was a “considerable disparity (22 587) . . . Cal.3d at between defendants procedural rights” prosecuted The were enti by information those indictment. former prosecuted by tled, alia, inter to “a before a neutral and preliminary hearing legally counsel, knowledgeable magistrate, retained or representation by appointed witnesses, and the oppor confrontation and cross-examination of hostile tunity to evidence.” personally appear affirmatively present exculpatory contrast, (Ibid,., omitted.) internal the latter none quotation By enjoyed marks of these safeguards.
After procedural this considerable disparity defendants survives. initiative whatever to gives nothing prosecuted Moreover, indictment. it takes little from defendants away prosecuted neutral information. Such defendants are still entitled to a hearing before *16 Here, no change. makes the measure knowledgeable magistrate. and legally or appointed retained to representation Such defendants are still entitled too, are still defendants change. makes no Such Here the measure counsel. True, the measure hostile witnesses. confront and entitled to cross-examine involving the rules by relaxing in this rights regard somewhat limits their (See Whitman v. is itself limited. quite But the relaxation it effects hearsay. 1072-1075, Cal.Rptr.2d (1991) 54 Cal.3d Superior [2 Court personally are still entitled to 262].) defendants Finally, 820 P.2d such evidence. As to appearance, and affirmatively present exculpatory appear evidence, little it does more. makes As to yet again change. measure no none appreciably indeed But imposed. Certain restrictions conditions are exculpatory affects evidence. sure, not examination be may be after 115 the Proposition preliminary
To did not consti But the vel non of discovery. availability discovery used for in significant disparity procedural tute of the considerable any aspect There, in that the prelimi we discerned we observed simply that Hawkins. accused,” examination “serves functions for nary pragmatic a number jury comparable them and that the is not among discovery, grand inquiry A (22 588-589.) Cal.3d at read our obser regard. dissenting justice this pp. an essential vation to examination serves “suggests with discovery regard function of the accused secondary providing pretrial Richardson, J.).) (dis. It did ing against (Id. the case him.” opn. no thing. such
In 2 and 3 of conducting my analysis, I have not overlooked sections 115. attempt these two amount to an to Proposition Apparently, provisions overrule in its Hawkins Section 3 was intended to entirety. effectively result, and, the state abrogate constitutional to right equal we had remove violation had found and to eliminate the we stated ordered. Section had a Recall that Hawkins different purpose. that the the state Legislature had broad under judiciary authority indictment, including charter to prescribe procedures prosecution by for Section power to or allow examinations. require postindictment preliminary intended was to withdraw that as to such examinations. authority 115’s to overrule Hawkins toto was unsuccessful. It attempt Henceforth, that section nor the valid. neither the appears Legislature judiciary has or seemingly authority require prelim- allow postindictment But it We examinations. 3 is not valid. so inary unquestionable held, Deukmejian unanimously, Raven v. 349-355 Therefore, 1077], the state constitutional abrogated. has not been It follows that the violation we *17 found Hawkins remains. But the of section the through operation we ordered therein is no remedy longer available. conclude to majority rest on the that contrary. They premise
Proposition “plainly of Hawkins its contemplated” overruling ante, True, (Maj. 45.) entirety. opn., of the initiative promoters may teaches, have intended that result. But as Raven failed that they regard. The majority construe the words of 115’s effectively Proposition appar valid section contain ently to the substance of its invalid unquestionably section 3. Such a construction is It insupportable. ignores independent and effect purpose two related It would also render provisions. valid, 2 redundant in to section if pertinent part 3. Section would have abrogated the state constitutional and would right thereby have removed the violation and eliminated the then remedy. Section would removed, abrogate right remove a violation already abrogated, already eliminate a An remedy already eliminated. redun interpretation yielding dancy (City should be avoided. and County San Francisco v. Farrell 935].) P.2d I recognize section makes the longer ordered Hawkins no available. But assertions, to the contrary majority’s bald of this repeated, unavailability particular we viewed in remedy—which Hawkins to be neither permanent nor not itself necessary—does abrogate the constitutional or remove the constitutional violation.
The next issue to be considered is: Can a violation of the state constitu- Yes, tional right to equal protection be avoided? so. The obviously People all may prosecute defendants indictment. Or they all may prosecute information. Or they may choose to some indictment and some prosecute by information the Legislature makes the two modes substan- procedural if tially similar—as defendants by giving subject grand jury inquiry rights similar to those enjoyed by defendants examination. It facing preliminary True, even if might be enough indictment was process simply opened. there would not be a neutral and legally knowledgeable magistrate to preside over the grand But could be jury inquiry. defendants allowed representation counsel, by retained or appointed confrontation and cross-examination of witnesses, hostile and an opportunity personally appear affirmatively present exculpatory evidence. avoided,
The issue that follows is If this: not must a state violation of the constitutional right to equal protection Again, be remedied? and obvi- yes noted, Code, ously so. As (Civ. “For there is a every wrong remedy.” when, here, the wrong This principle peculiarly applicable seems is of constitutional dimension. 115, a
The final concerns remedies. After question postindict- Moreover, it ment is no available. longer appears examination But to such a barred. any equivalent impliedly substantial procedure notwithstanding majority’s implication, constitutionally permissi- future, ble are I leave the choice surely mechanisms available. For the would *18 bar, I the first instance. For the case at would Legislature require relief form of that is consistent with this opinion.
IV above, For all the reasons I erred stated conclude that the court superior denying Bowens’s motion and the Court of erred his Appeal by refusing petition.
I would therefore reverse the order of the with Court of directions Appeal cause issuance of a writ as peremptory prayed.