TERRY DALE DUSTIN, Petitioner, v. THE SUPERIOR COURT OF STANISLAUS COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
No. F039023
Fifth Dist.
July 9, 2002
1311
Tim Bazar, Public Defender, Martha J. Carlton-Magana, Deputy Public Defender; and Krista Hart for Petitioner.
No appearance for Respondent.
James C. Brazelton, District Attorney, and Rick Distaso, Deputy District Attorney, for Real Party in Interest.
OPINION
WISEMAN, J.-In capital cases, appellate courts and legislatures have long recognized the compelling need for ensuring reliability in determining
In this death penalty case, the prosecutor takes the art of relying on technicalities to new heights, a practice often attributed to defense counsel. Terry Dale Dustin‘s case began as most cases do---with the filing of a complaint. However, due to the fact Dustin‘s trial counsel required surgery, the preliminary hearing was continued for approximately three months. Undaunted, the prosecutor decided to proceed by grand jury indictment, which went forward approximately one week after the continuance was granted. Relying on
We hold this was error in violation of
This case arises from a homicide in which the prosecution seeks the death penalty against Dustin (defendant). A complaint was filed in superior court as case No. 1001382, and set for preliminary hearing on January 10, 2001. Defendant requested and was granted a continuance to April 26, 2001. Afterward, the prosecution dismissed the complaint and proceeded by grand jury indictment, held on January 16, 2001. An indictment was returned the same day charging defendant with violations of murder under
On July 16, 2001, defendant filed a motion to dismiss the indictment pursuant to
On September 13, 2001, the court denied the
A petition for writ of prohibition and/or mandate was filed here on October 2, 2001, and denied on October 4, 2001. A petition for reviеw was filed in the California Supreme Court on October 16, 2001, and granted on December 19, 2001. The matter was ordered transferred here with directions to vacate our order denying mandate and “to issue an order directing respondent superior court to show cause why petitioner is not entitled to a complete transcript of the entire grand jury proceeding, and if so, whether dismissal of the indictment is an appropriate remedy for violation of that right.”
On January 18, 2002, pursuant to the Supreme Court‘s direction, we ordered our denial of defendant‘s petition for writ of prohibition and/or mandate vacated and directed that an order to show cause issue.
The facts are taken from the testimony given in the grand jury proceeding and supplemented by exhibits attached to the petition.
On April 5, 1999, Gabriel Garcia went to the Gustine Police Department and reported that his brother, Santiago Garcia (Garcia), had been missing and he had last seen him on Mаrch 22, 1999. Officer James Hamera took the report and conducted an investigation. Gabriel and Hamera went to Garcia‘s apartment and contacted two men, Heriberto Artea and Mario Perez. Gabriel told Hamera he had seen Artea driving Garcia‘s automobile. Artea and Perez stated they did not know where Garcia was but had Garcia‘s permission to stay at the apartment. Artea also stated he had received permission to drive Garcia‘s car. Both Artea and Perez had last seen Garcia around March 22, 1999. Officer Hamera checked the residence and found no evidence of foul play. An inspection of Garcia‘s car produced negative results.
Artea stated he had seen Garcia arguing with a White male, possibly Sean Zunino. Gabriel described Garcia as a 41-year-old Hispanic male, five feet eight inches tall and weighing 190 pounds. Garcia walked with a limp due to a broken right kneecap suffered about 20 years earlier. Hamera subsequently contacted Zunino. Zunino denied knowing Garcia or having an argument with a Hispanic male on March 22, 1999.
On June 3, 1999, Stanislaus Sheriff‘s Deputy Ralph Ghimenti investigated the discovery of a man‘s body at Pete Miller Road near the Delta-Mendota Canal. The body was lying in an open field with the hands handcuffed behind its back. It was decomposing and appeared to have been dragged and partially eaten by animals. The head was located 26 feet away from the body. An autopsy determined the cause of death was a skull fracture and six stab wounds that were applied through Garcia‘s back. X-rays revealed the right kneecap had been surgically removed. There were no sharp injuries to the bones in the neck, suggesting the head may have been removed by animal activity.
Yvonne Dustin married defendant in 1988 and divorced him in 1996. She received a call from defendant in late March or early April of 1999, asking her to pick him up in Stockton because his vehicle had broken down. He sounded very hurried and wanted her to come right away. The next morning, Dustin paid her cousin Patricia Carter $100 to give her a ride to pick up defendant. On the trip back, defendant stated, “Yvonne, Yvonne, I killed a man.” He also stated, “I‘m telling you, Yvonne, for real,” and he drew his finger across his neck.
On December 22 or 23, 1999, Sheriff‘s Detective Scott Hardman interviewed defendant at the sheriff‘s office regarding Garcia‘s murder. Defendant waived his constitutional rights and agreed to talk with Hardman. After initially denying knowledge about the murder, defendant implicated Sean Zunino. Later during the interview, defendant gave a full confession to the murder. He stated he was angry with Garcia because he believed he was sexually involved with Palma and was providing her with methamphetamine. He recruited Zunino to go to Garcia‘s home and rob him. About 2:30 a.m., defendant and Zunino went in defendant‘s van to Garcia‘s one-room apartment. Defendant parked the van in an alley. They went to the front door, Zunino kicked it open, and both rushed in. Garcia was in bed and reached for his pants. Defendant then struck Garcia in the head with a flashlight four to six times. As Garcia was going in and out of consciousness, defendant rolled him onto his stomach and handcuffed his hands behind his back. Zunino and defendant ransacked the house for money and drugs. They then put Garcia in the van and drove to a deserted section of the Delta-Mendota Canal. After leading Garcia to a grassy area, defendant slit his throat several times, but Garcia did not die. Defendant then placed Garcia on his stomach and stabbed him five to six times, back to front, with a long-blade knife, going through his heart. Defendant also cut off one of Garcia‘s fingers and removed a ring. Defendant then threw the knife, his clothing, and Garcia‘s wallet into the canal. Only a small-blade knife was later recovered by a dive team. Defendant ultimately walked detectives through the crime scene and showed them where he committed the acts just described.
I. Entitlement to a complete transcript in a grand jury proceeding
Based on directions from the California Supreme Court, we issued an order to show cause to respondent court “why ... petitioner is not entitled to a complete transcript of the entire grand jury proceeding, and if so, whether dismissal of the indictment is an appropriate remedy for a violation of that right.” Real party in interest (the People) argues defendant is not entitled to a complete transcript, and, even if he is, dismissal of the indictment is not an appropriate remedy.
People v. Superior Court (Mouchaourab) (2000) 78 Cal.App.4th 403 [92 Cal.Rptr.2d 829] (Mouchaourab) recently undertook a comprehensive analysis of the background pertaining to grand jury proceedings and the common law and statutory development over the years. (Id. at pp. 413-425.) The court considered “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
The People point out that
“(a) Whenever criminal causes are being investigated before the grand jury, it shall appoint a competent stenographic reporter. He shall be sworn and shall report in shorthand the testimony given in such causes and shall transcribe the shorthand in all cases where an indictment is returned or accusation presented.
“(b) At the request of the grand jury, the reporter shall also prepare transcripts of any testimony reported during any sessiоn of the immediately
preceding grand jury.” (Added by Stats. 1959, ch. 501, § 2, p. 2451; amended by Stats. 1975, ch. 298, § 3, p. 743, eff. Aug. 22, 1975.)
If an indictment is found,
The People‘s argument was rejected in Mouchaourab in light of California Supreme Court authority enlarging a defendant‘s rights to challenge an indictment, specifically, Johnson v. Superior Court (1975) 15 Cal.3d 248 [124 Cal.Rptr. 32, 539 P.2d 792], People v. Backus (1979) 23 Cal.3d 360 [152 Cal.Rptr. 710, 590 P.2d 837], and Cummiskey v. Superior Court (1992) 3 Cal.4th 1018 [13 Cal.Rptr.2d 551, 839 P.2d 1059]. The Mouchaourab court explained:
“The holding of Stern is a narrow one: Exhibits and advice given by the district attorney are not strictly part of the ‘testimony’ before the grand jury and thus are not required to be reported under sections 938 and 938.1 (former § 925). As noted in the previous section, the Supreme Court in Johnson later found that section 939.7 provided a separate statutory basis for allowing defendant to obtain nontestimonial portions of the proceedings in order to determine whether the prosecutor had advised the grand jury regarding exculpatory evidence. And cases decided thereafter indicate that nontestimonial portions of the proceedings were routinely provided to defendants mounting a challenge to the indictment, even though nо statute specifically required transcription. (See, e.g., People v. Snow [(1977)] 72 Cal.App.3d 950, 958 [140 Cal.Rptr. 427] [record of hearing reveals district attorney advised grand jury of possible exculpatory evidence]; People v. Laney [(1981)] 115 Cal.App.3d 508, 512-513 [171 Cal.Rptr. 493] [record included district attorney‘s admonitions and dialogue before the grand jury with witnesses who did not testify]; People v. Coleman [(1978)] 84 Cal.App.3d 1016, 1019 [149 Cal.Rptr. 134] [transcript contained district attorney‘s comments and answers to grand juror‘s questions at conclusion of testimonial evidence]; Backus, supra, 23 Cal.3d 360, 393 [grand jury advised of certain evidence admissible for a limited purpose]; Cummiskey, supra, 3 Cal.4th 1018, 1031-1032 [transcript of question and answer exchange between grand jurors and district attorney quoted]; [s]ee also People v. Jones (1990) 51 Cal.3d 294, 318 [270 Cal.Rptr. 611, 792 P.2d 643], acknowledging that ‘[i]n cases prosecuted by indictment, every indicted defendant is entitled to a complete transcript of the proceedings....‘) (Italics added.)
“In Backus, the court found that a defendant‘s right to challenge an indictment for lack of probable cause under section 995 could include a claim that the state of the evidence, ‘under the instructions and advice given by the prosecutor,’ compromised the grand jury‘s ability to reach a determination independently and impartially. (Backus, supra, 23 Cal.3d at p. 393, italics added.) Similarly in Cummiskey, the court found that a defendant had a cognizable claim under section 995 if he or she could show prejudicial error in ‘the manner in which the prosecutor conducted the grand jury proceedings.’ (Cummiskey, supra, 3 Cal.4th at p. 1022, fn. 1.) Thus even though, as the Stern court held, sections 938 and 938.1 require only transcription of testimony, that does not prohibit discovery of other portions of the record permitted under other statutes and subsequent law.” (Mouchaourab, supra, 78 Cal.App.4th at p. 430.)
Contrary to the People‘s position,
“In interpreting these statutes we are aided by well-established rules of statutory construction, which require that we construe statutes ‘to effectuate their purpose and intent, reading statutory schemes as a whole and harmonizing their provisions.’ [Citations.] We read the words of statutes with their commonsense meanings, and avoid interpretations ‘which defy common sense or which might lead to mischiеf or absurdity, including literal meanings which would lead to a result not intended by the Legislature.’ [Citations.] Thus if a literal reading of one statutory provision regarding grand jury proceedings would render it inconsistent with other statutes, such an interpretation may be rejected in favor of one which is in harmony with other parts of the statutory scheme. (Farnow v. Superior Court [(1990)] 226 Cal.App.3d 481, 490 [276 Cal.Rptr. 275].) For example, in Farnow, the court considered an amendment to section 939, which expressly provided that only certain parties could be present at criminal sessions of the grand jury, ostensibly implying that there were no limits as to who could be present
at civil sessions. [Citation.] The court concluded that the Legislature could not have intended this result, which would have rendered section 939 inconsistent with other statutes governing grand jury proceedings, and therefore rejected a literal reading of the amendment. [Citation.]” (Mouchaourab, supra, 78 Cal.App.4th at p. 428.)
In this case, the People are seeking to impose the death penalty against defendant.
In People v. Holt (1997) 15 Cal.4th 619, 708 [63 Cal.Rptr.2d 782, 937 P.2d 213], the court held that ”
“Petitioner‘s argument misconceives the nature of the grand jury institution in California and its relationship to the courts. Although petitioner suggests that the grand jury is a completely freewheeling entity, separate and distinct from the judicial branch of government, the governing provisions uniformly refute such a characterization.
Penal Code section 888 defines a grand jury as ‘a body of the required number of persons returned from the citizens of the county before a court of competent jurisdiction ...’ (Italics added.) As this section indicates, and as the California precedents have long recognized, the grand jury is a ‘judicial body’ [citation], ‘an instrumentality of the courts of this state ...’ [Citations.]“As this court stated emphatically almost 90 years ago: ‘There is no doubt that a grand jury is part of the court by which it is convened, and that it is under the control of the court....’ [Citations.] In this regard, it is well established that the convening court ‘mаy at any time, in the exercise of its
jurisdiction, order [the grand jury] to be discharged.’ [Citation.]” (People v. Superior Court (1973 Grand Jury), supra, 13 Cal.3d at pp. 438-439, fn. omitted.)
(1d) Even less persuasive is the People‘s argument that this matter “is not a ‘case‘” within the meaning of
Contrary to the People‘s position, it is immaterial whether we label the grand jury proceeding an “adjudicative proceeding” or a “charging proceeding” for purposes of finding that
Finally, the People note that a grand jury proceeding must remain secret, subject to disclosure only as regulated by statute. They argue this prohibition does not change simply because the grand jury is investigating a case in which the death penalty may eventually be imposed. Generally sрeaking, we agree. However, the People‘s argument is undermined because the disclosure requirement is specifically regulated by
It is the trial court‘s responsibility to resolve discovery disputes where the People propose to limit disclosure of portions of grand jury proceedings. (Mouchaourab, supra, 78 Cal.App.4th at p. 437.) However, the People‘s decision nоt to have all the proceedings recorded in this case removed discretion the trial court might otherwise have been able to exercise. Further, it violated the intent behind
It is difficult to imagine an innocent reason why a prosecutor would instruct a court reporter to leave only during his or her comments to the grand jury---especially where no judge, jury, defense counsel, or client is present. This procedure not only violated defendant‘s rights under the statutory scheme, but also precluded any effective review of the prosecutor‘s comments by the trial court. It seems inescapable that the prosecutor‘s exclusion of the court reporter was done for the express purpose of precluding discovery by the defendant of his opening statement and closing argument.
The prosecutor‘s comments to the court are telling:
“THE COURT: Mr. Distaso [prosecutor], the main thing is tell me how you get around a holding in the Mouchaourab case which indicates that Stern,
that you‘re relying on, clearly right on point for you, on one page they indicate Stern is little viability. “MR. DISTASO: The reason---it‘s simple, Your Honor. We---I don‘t understand why---well, I gotta say this: Miss---first off, grand juries have been conducted in the fashion that they were in this case in this county ever since that I‘ve been here, been five years. And so I know they‘ve been going on longer than that.
“Miss Carlton [defense counsel] mentioned the Dewalter Mitchell case, another case that was done, a similar grand jury, a 995 was denied in that case based on the same issue. So this is not anything that the cour---this is not a case of first impression here in this courthouse regarding this issue.
“THE COURT: I can‘t consider what other judges have done.
“MR. DISTASO: I understand. But my point is that there is nothing in the Mouchaourab case that says that the People are required to transcribe portions of the grand jury other than---I mean report and then transcribe portions of the grand jury other than that which is required under the statute. Nothing in that case says that at all.
“There is no reason for the People to take every case that comes down and interpret it in a fashion, you know, most favorable to the defense so we‘re continually giving the defendants more than they‘re legally entitled to. They‘re legally entitled to transcriptions---I mean to reporting of testimonial portions of the grand jury, and that‘s what they have received. The Mouchaourab case was a very specific situation, where the grand jury---I mean the district attorney himself decided to report those other areas, and then not turn them over. And I can see the court‘s reasoning on that point. Well, it is information that‘s available, so we‘ll turn it over. The court in, nowhere in that opinion does it state, ‘And from now on you DAs, you have to record every portion of a grand jury proceeding.’ That is not what that holding says.”
We make this point in keeping with comments made by the California Supreme Court in People v. Holt, supra, 15 Cal.4th at page 708, footnote 30: “We again note our disapproval of these clear violations of section 190.9. Court and counsel by now should be well aware of the importance of complying with section 190.9, which was enacted in 1984. [Citation.]” Further, the prosecutor‘s behavior is relevant in addressing whether dismissal is an appropriate remedy for the failure to provide a complete transcript of the grand jury proceedings.
(5) The trial court denied the motion to dismiss the indictment because, under its reading of the present state of the law, this was not required. In addition, the court expressed its belief that case law likely would require the recording of all grand jury proceedings in future death penalty cases. The court also found that, assuming error, “the evidence is overwhelming against both defendants, and I couldn‘t envision what the prosecution could have said in those ten minutes that would have compromised the independence of the jury. Therefore, ... it was ... harmless error.”
The People argue the error is subject to a harmless error analysis. Providing no citation to authority to support their position, the People contend the burden of showing prejudice is on defendant. The People cite postconviction cases, which require a showing of prejudice by the defendant. (See e.g., People v. Holt, supra, 15 Cal.4th at p. 708 [“Since procedures for settlement of the record are often adequate to resolve [the] disputes and avoid prejudice, ... a defendant bears the burden of demonstrating that the record is not adequate to permit meaningful appellate review“]; People v. Freeman (1994) 8 Cal.4th 450, 509 [34 Cal.Rptr.2d 558, 882 P.2d 249, 31 A.L.R.5th 888] [“Defendant ‘bears the burden of demonstrating that the appellate record is not adequate to permit meaningful appellate review’ “]; People v. Cummings (1993) 4 Cal.4th 1233, 1333-1334, fn. 70 [18 Cal.Rptr.2d 796, 850 P.2d 1] [“on appeal the court does not presume prejudice“]; People v. Roberts (1992) 2 Cal.4th 271, 326 [6 Cal.Rptr.2d 276, 826 P.2d 274] [assuming, without deciding, that federal due process was violated by failure to record proceedings and depriving defendant of the right of meaningful review, the error was harmless beyond a reasonable doubt].)
Since this is a pretrial matter, these cases are not applicable. This case is more analogous to a violation of a substantial right at a preliminary hearing. (People v. Pompa-Ortiz (1980) 27 Cal.3d 519 [165 Cal.Rptr. 851, 612 P.2d 941].) In Pompa-Ortiz, the court settled the prejudice standаrds to be applied. First, however, it noted: “It is settled that the 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.” (Id. at p. 523, citing Jennings v. Superior Court (1967) 66 Cal.2d 867, 874 [59 Cal.Rptr. 440, 428 P.2d 304].) The court then held: “Henceforth irregularities in the preliminary examination procedures which are not jurisdictional in the fundamental sense shall be reviewed under the appropriate standard of prejudicial error and shall require reversal only if defendant can show that he was deprived of a fair trial or otherwise suffered prejudice as a result of the error at the preliminary examination. The right to relief without any showing
In People v. Towler (1982) 31 Cal.3d 105, 123 [181 Cal.Rptr. 391, 641 P.2d 1253], the court held: “The reasoning in Pompa-Ortiz applies with equal force in the grand jury context.” Similarly, we held in People v. Laney, supra, 115 Cal.App.3d 508, 513: “We conclude and hold that the rule announced in People v. Pompa-Ortiz[, supra,] 27 Cal.3d 519, 529 ... with regard to irregularities in preliminary examination procedures applies also to grand jury proceedings. Consequently the irregularities, if any there be, require reversal only if an accused can show he was deprived of a fair trial or otherwise suffered prejudice. Relief without showing of prejudice is limited to pretrial challenges.”
We conclude it was error for the trial court to have placed the burden on defendant to show prejudice as a result of the denial of his right to a transcript of the entire grand jury proceedings. In the absence of a transcript, coupled with thе fact that no judge or defense representative was present, it is difficult to imagine how a defendant could ever show prejudice.
In addition, we disagree that nothing the prosecutor argued to the grand jury could have compromised the grand jury‘s independence. Although we can only speculate what might have occurred in this case (due to the prosecutor‘s decision to have the court reporter excluded), suffice it to say that argument is a critical stage of the proceedings. Further, the intentional failure to record the proceedings as mandated by statute in death penalty cases resulted in the denial of “a substantial right,” i.e., the ability to raise prosecutorial misconduct and to receive meaningful review of any alleged error. Under these circumstances, defendant does not need to show he suffered prejudice beyond his right to the records (Stroud v. Superior Court (2000) 23 Cal.4th 952, 963, fn. 4 [98 Cal.Rptr.2d 677, 4 P.3d 933]), and prejudice is presumed. (People v. Pompa-Ortiz, supra, 27 Cal.3d at p. 529.)
On May 2, 2002, after briefing was complete but before oral argument, the People filed a letter requesting we consider Mills v. Superior Court (1986) 42 Cal.3d 951 [232 Cal.Rptr. 141, 728 P.2d 211], on the issue of prejudice. First, Mills does not address who bears the burden of showing prejudice/harmless error. As a result, it does not support the People‘s contention that the burden is on defendant. Second, the circumstances of the Mills case are distinguishable from those here, making its analysis of little assistance.
In Mills, Justice Mosk, in a lead opinion, invalidated
The opinion then applied the rule adopted in Rogers v. Superior Court (1955) 46 Cal.2d 3, 7 [291 P.2d 929], which held that prohibition is an appropriate means to test the validity of an indictment or information when it is challenged on the ground that the defendant was indicted or committed without reasonable or probable cause. Rogers, however, qualified this by holding that “when prohibition is sought under
The lead opinion in Mills applied these cases to its circumstances and determined the error in admitting the affidavit was harmless. It first noted
Here, unlike Rogers, the validity of the indictment is not being challenged on the ground that defendant was indicted without reаsonable or probable cause. Thus, the Rogers test, applied in Mills, does not apply. Unlike the circumstances in Mills, here the People‘s decision to deny defendant a recordation of all the proceedings amounted to a denial of a substantial right. In addition, in Mills, the court was able to review the witness‘s affidavit to determine that denial of cross-examination of a nonessential witness whose testimony was unnecessary even at trial, did not amount to a denial of a substantial right. Here, the People‘s decision not to record all the proceedings, in direct contravention of
DISPOSITION
Let a peremptory writ of mandate issue vacating respondent court‘s order denying defendant‘s motion to dismiss the indictment and directing the superior court to enter a new order granting the motion. The writ shall issue without prejudice to the People continuing to prosecute these charges by seeking another indictment free of the charged defects or by filing another complaint.3 The stay order is vacated.
Vartabedian, J., concurred.
I have no problem with the notion that a trial court has discretion to order disclosure of a transcription of portions of grand jury proceedings beyond the testimony given in such cаuses. (See People v. Superior Court (Mouchaourab) (2000) 78 Cal.App.4th 403, 428-429, 437 [92 Cal.Rptr.2d 829] (Mouchaourab).) I also recognize that, under California law, “a defendant has a due process right not to be indicted in the absence of a determination of probable cause by a grand jury acting independently and impartially in its protective role. [Citations.] An indicted defendant is entitled to enforce this right through means of a challenge under [Penal Code] section 995 to the probable cause determination underlying the indictment, based on the nature and extent of the evidence and the manner in which the proceedings were conducted by the district attorney. [Citations.]” (Mouchaourab, supra, 78 Cal.App.4th at pp. 424-425.)1 While the better practice is to have a stenographic reporter transcribe the complete grand jury proceeding, however, nothing in the statutes or case authorities explicitly requires that a complete transcription be available.2
The majority implicitly recognize this and rely on the requirement of
With exceptions not relevant here, “[e]very public offense must be prosecuted by indictment or information ....” (
The fact that
Although a grand jury proceeding may have the same purpose as a preliminary hearing---the weeding out of baseless criminal accusations (see Cummiskey v. Superior Court, supra, 3 Cal.4th at p. 1027; People v. Brown, supra, 75 Cal.App.4th at p. 931; Nienhouse v. Superior Court (1996) 42 Cal.App.4th 83, 91 [49 Cal.Rptr.2d 573])---the differences between the two
The various protections California has built into its grand jury proceedings have not “transformed the grand jury proceeding from one that is investigatory to one that is adjudicatory.” (People v. Brown, supra, 75 Cal.App.4th at p. 931.) In my view,
The majority seem to find the prosecutor‘s reasoning and comments in this case to be indicative of some sort of blameworthy intent. I cannot agree. Indeed, as the prosecutor suggested, Mouchaourab does not hold that every portion of a grand jury proceeding must be reported and transcribed. Although the prosecutor‘s explanation for, and argument concerning, his exclusion of the court reporter from opening statement and closing argument may indicate his office might wish to reexamine its practice in this regard, those comments do not suggest the lack of an innocent reason for the exclusion. I find the majority‘s conclusion, that the prosecutor acted for the express purpose of precluding discovery by defendant of the statements at issue, unwarranted.
Because I conclude that defendant did not have an absolute right to a transcript of the entire proceeding before the grand jury, I would not dismiss
Even where
In Pompa-Ortiz, the California Supreme Court held that relief could be obtained without a showing of prejudice only in case of a pretrial challenge to irregularities in the preliminary hearing. (Pompa-Ortiz, supra, 27 Cal.3d at p. 529.) This rule has since been extended to grand jury proceedings. (People v. Towler (1982) 31 Cal.3d 105, 123 [181 Cal.Rptr. 391, 641 P.2d 1253]; People v. Laney (1981) 115 Cal.App.3d 508, 513 [171 Cal.Rptr. 493].) For the Pompa-Ortiz rule to apply, however, the accused must have been denied a substantial right during the course of the proceeding. Some irregularity or minor error is not enough. (See Jennings v. Superior Court, supra, 66 Cal.2d at p. 874.)
In terms of a preliminary hearing, “[s]ubstantiаl rights within the meaning of section 995 have been held to include the right to counsel, cross-examination and the presentation of an affirmative defense at the preliminary hearing, and substantial procedural rights such as the statutory right to complete the hearing in one session and to have a closed hearing. [Citations.]” (People v. Pennington (1991) 228 Cal.App.3d 959, 964 [279 Cal.Rptr. 85]; see Pompa-Ortiz, supra, 27 Cal.3d at p. 523; Jennings v. Superior Court, supra, 66 Cal.2d at pp. 874-875.) Given the statutory requirements (
I would deny the petition.
On August 8, 2002, the opinion was modified to read as printed above. The petition of real party in interest for review by the Supreme Court was denied September 25, 2002. Baxter, J., did not participate therein. Chin, J., and Brown, J., were of the opinion that the petition should be granted.