THE PEOPLE, Plаintiff and Appellant, v. LEONARD HARRIS et al., Defendants and Respondents.
No. A022241
First Dist., Div. Five
Mar. 25, 1985
165 Cal. App. 3d 1246
John K. Van de Kamp, Attorney General, Martin S. Kaye, Bruce M. Slavin and Donna B. Chew, Deputy Attorneys General, for Plaintiff and Appellant.
Jeff Brown, Public Defender, Peter G. Keane, Chief Attorney, Alberto C. Crespo and Grace Lidia Suarez, Deputy Public Defenders, and Marvin Rous for Defendants and Respondents.
OPINION
POCHÉ, J.*—The sole issue on this appeal by the People from an order setting aside the information against defendants Leonard Harris and Gloria
I.
The sole witness at the preliminary examination conducted on March 10, 1983,2 was Timothy Carey, who testified in effect that on January 21st he observed defendants break a window of a parked automobile and remove two boxes therefrom. At the conclusion of Mr. Carey‘s testimony, the prosecutor requested that the magistrate admit in evidence “pursuant to [section] 872 . . . , thе statement in lieu of testimony” of John Kearney, the owner of the automobile. The attorneys for both defendants objected on the grounds that the statement was (1) hearsay; (2) failed to provide defendants with their “right of confrontation of witnesses“; and (3) because Kearney‘s statement “cannot be considered that of a victim” and consequently was “not in conformity with . . . Section 872.” After their request to file a memorandum of points and authorities was granted, defendants asked the
On March 14, the magistrate overruled defendants’ objections and denied their motion to exclude the statement because “[t]he Legislature in its wisdom has allowed this particular testimony to be admissible at a preliminary hearing. . . .” Defendants were thereupon ordered held to answer in the superior court on a charge of violating
Defendants wеre jointly charged in an information filed on March 25 with a violation of
On April 4th and 8th, defendants noticed separate motions for an order setting aside the information pursuant to
The trial court conducted a hearing on the motions on April 14. During the course of oral arguments, the court advised the prosecutor of the reasons for its ruling in these terms: “I have to grant the 995, the witness wasn‘t there. . . . [T]here is no question you followed the statute . . . . What right does the Legislature have to say . . . you can submit a preliminary examination on partially hearsay testimony and if they object to the hearsay they have to demand of you that you produce the witness. . . . [D]efendants were not afforded the right of cross-examination . . . . [T]his statute places the burden upon them to make a demand upon you to produce the witness. And I think that is your responsibility. . . . I‘m granting it on the basis of my believe [sic: belief] that 872 B is unconstitutional. . . . It is granted, but it is only granted as tо the [un]constitutionality of 872 B.” The following day the People filed a timely notice of appeal.6
II.
The People‘s sole contention on this appeal is that the trial court erred in granting defendants’ motion to set aside the information because
All of the parties have treated the constitutionality of subdivisions (b) and (c) as being at issue on this appeal. It is apрarent from their moving papers that defendants were indeed challenging both subdivisions. But as shown by its remarks quoted above, the trial court decided only “that 872 B is unconstitutional” at the time it granted defendants’ motion. It is nevertheless clear from the court‘s further remarks concerning the necessity of a “demand” for the declarant by the defense that subdivision (c) was at least considered by the trial court. We agree with the trial court that the constitutionality of subdivision (b) cannot be determined without reference to subdivision (c). We shall therefore invoke and apply the cardinal rule of statutory construction that all parts of a statute must be read and considered as a whole. (See In re Ricky H. (1981) 30 Cal.3d 176, 187; In re Bandmann (1958) 51 Cal.2d 388, 393; Clements v. T. R. Bechtel Co. (1954) 43 Cal.2d 227, 232; People v. Trieber (1946) 28 Cal.2d 657, 663; People v. Moroney (1944) 24 Cal.2d 638, 642; see also
Next, it is a familiar rule of practice that courts will decide constitutional issues only if absolutely necessary and other nonconstitutional grounds for
Our final preliminary comment pertains to the scope of our inquiry. The argument made by defendants, both in the trial court and on this appeal, is that
“‘All presumptions and intendments favor the validity of a statute and mere doubt does not afford sufficient reason for a judicial declaration of invalidity. Statutes must be upheld unless their unconstitutionality clearly, positively, and unmistakably appears.‘” (In re Dennis M. (1969) 70 Cal.2d 444, 453; accord In re Ricky H. (1970) 2 Cal.3d 513, 519; People v. Poggi (1980) 107 Cal.App.3d 581, 589.)
Whеn a statute is attacked as unconstitutional on its face, the attacker “cannot prevail by suggesting that in some future hypothetical situation constitutional problems may possibly arise as to the particular application of the statute“; instead, the challenger “must demonstrate that the act‘s provisions inevitably pose a present total and fatal conflict with applicable constitutional prohibitions.” (Pacific Legal Foundation v. Brown (1981) 29 Cal.3d 168, 180-181 [original italics deleted, italics added]; see County of Nevada v. MacMillen (1974) 11 Cal.3d 662, 674; 1 Sutherland, Statutory Construction, op. cit. supra, § 2.06, at p. 22.) The corollary of this burden is that if this court can conceive of a situation in which
The attack mounted against
Right of Confrontation
This is thе primary constitutional right which defendants claim is infringed by
The right of a defendant in a criminal prosecution to confront the witnesses against him is guaranteed by the Constitutions of California and the United States. (
The People contend that
Despite its undoubted importance, the right of confrontation is not absolute. (People v. Enriquez (1977) 19 Cal.3d 221, 235; Herbert v. Superior Court, supra, 117 Cal.App.3d at p. 667; People v. Johnson (1974) 39 Cal.App.3d 749, 754.) It may be lost or waived in a variety of ways. (See In re Hannie (1970) 3 Cal.3d 520, 526; In re Mosley (1970) 3 Cal.3d 913, 921; Herbert v. Superior Court, supra, at pp. 667-668.) Much controversy has concerned the compatibility of the constitutional requirements of confrontation with the application of exceptions to the hearsay rule. (See Ohio v. Roberts (1980) 448 U.S. 56; Dutton v. Evans (1970) 400 U.S. 74; California v. Green (1970) 399 U.S. 149; Barber v. Page (1968) 390 U.S. 719; People v. Winson (1981) 29 Cal.3d 711, cert. den., 455 U.S. 975; People v. Chavez (1980) 26 Cal.3d 334; People v. Orduno (1978) 80 Cal.App.3d 738; People v. Johnson, supra, 39 Cal.App.3d 749; see also Read, The New Confrontation-Hearsay Dilemma (1972) 45 So.Cal.L.Rev. 1.) The decisions on this subject—which provide a fruitful source of analytical analogy—focus not upon abstract arguments but upon a scrutiny of the factual circumstances present in each case, in the belief that individualized adjudication will best promote the goal of confrontation, i.e., “to advance a practical concern for the accuracy of the truth-determining process in criminal triаls by assuring that ‘the trier of fact (has) a satisfactory basis for evaluating the truth of the prior statement.‘” (Dutton v. Evans, supra, at p. 89; see Ohio v. Roberts, supra, at pp. 63-66, 70-77; California v. Green, supra, at pp. 158-164; People v. Winson, supra, at pp. 717-719; People v. Enriquez, supra, at
The opportunity to cross-examine witnesses is a primary interest secured by the right of confrontation. (Douglas v. Alabama (1965) 380 U.S. 415, 418; People v. Murphy (1963) 59 Cal.2d 818, 830; Herbert v. Superior Court, supra, 117 Cal.App.3d at p. 667.) Confrontation undoubtedly serves other values, including the chance to observe and evaluate the witness‘s demeanor. (See Mattox v. United States (1895) 156 U.S. 237, 242-244; United States v. Benfield (8th Cir. 1979) 593 F.2d 815, 821; Herbert v. Superior Court, supra, at pp. 667, 669-671; Read, op. cit. supra, 45 So.Cal.L.Rev. 1, at pp. 15-17, 27, 49.) Nevertheless, a group of decisions by the Supreme Courts of California and the United States dealing with the constitutionality of one of the exceptions to the hearsay rule establishes that for present purposes it is the opportunity for cross-examination that is the controlling factor in determining whether confrontation has been denied.
The validity of
The court in Johnson explained the value of contemрoraneous cross-examination in these terms: “‘The chief merit of cross examination is not that
The Johnson holding was reiterated the following year in People v. Green (1969) 70 Cal.2d 654. There also, a key witness for the prosecution had become “markedly evasive and uncooperative” at the trial, which diminished the effect of earlier damaging testimony given at the preliminary examination. (Id., at p. 657.) The prosecutor was allowed to introduce extrinsic evidence of that earlier testimony, and the defendant was convicted. The California Supreme Court reversed, holding that application of
The court then reviewed decisions by the United States Supreme Court and discerned in them support for the conclusion that Green had been denied effective exercise of his confrontation right: “‘Thesе rulings emphasize the high court‘s belief in the importance of ensuring the defendant‘s right to conduct his cross-examination before a contemporaneous trier of fact, i.e., before the same trier who sits in judgment on the truth of the witness’ direct testimony as it is spoken from the stand.’ (Italics in original.) (People v. Johnson (1968) supra, 68 Cal.2d 646, 659, 660.) We reiterate that the ‘contemporaneous’ cross-examination which alone, in the absence of a legal showing of necessity, can be considered fully effective and constitutionally adequate is cross-examination at the same time as the direct testimony is given, before the same trier as must ultimately pass on the credibility of the witness and the weight of that testimony. In short, cross-examination neither
That judgment was vacated, and the rationale of People v. Johnson was rejected, by the United States Supreme Court in California v. Green, supra, 399 U.S. 149. The court‘s general holding was that the federal right of confrontation is not violated by the admission of a prior extrajudicial statement made by a declarant who is subject to cross-examination either at the time the statement is made (i.e., at the preliminary examination) or at trial. In the process of determining that the California Supreme Court‘s Johnson and Green rulings that
Particularly pertinent for present purposes is the court‘s discussion of why the prior statement of the witness (named Porter) would have been admissible at trial by reason of earlier events: “We also think that Porter‘s preliminary hearing testimony was admissible as far as the Constitution is concerned wholly apart from the question of whether respondent [Green] had
The final episode in this sequence is the California Supreme Court‘s decision in People v. Chavez, supra, 26 Cal.3d 334. Therе, the only witness who could testify as to the defendant having fired a rifle recanted earlier testimony. After this witness denied at the trial that the defendant was the gunman, the prosecutor was allowed to introduce evidence of a statement made by the witness at the preliminary examination to the effect that the defendant had fired the shots in question. The Supreme Court held that no violation of the defendant‘s state constitutional confrontation right had occurred.
The defendant asked that the Johnson and Green holdings of the California court (that
In the case at hand, the essence of defendants’ argument that “they had no opportunity to cross-examine the victim, nor did the magistrate have an opportunity to observe his demeanor” is an attempt to exhume the contemporaneous cross-examination controversy. This argument, although accepted in People v. Johnson and People v. Green, was authoritatively buried in California v. Green and People v. Chavez. Defendants cannot now disinter it.
The latter pair of decisions establishes that no violation of the confrontation clauses of either the United States or the California Constitutions occurs if a declarant is available for cross-examination regarding his prior extrajudicial statement. Cross-examination alone provides “the trier of fact a satisfactory basis for evaluating the truth of the prior statement . . . even though some demeanor evidence that would have been relevant in resolving this credibility issue is forever lost.” (California v. Green, supra, 399 U.S. at pp. 160-161; see Dutton v. Evans, supra, 400 U.S. at pp. 88-89; People v. Chavez, supra, 26 Cal.3d at pp. 360-361.)
Within the context of this case, these authorities establish that a defendant‘s confrontational rights under both state and federal Constitutions suffer no improper impairment if he is given an opportunity to cross-examine the declarant of an extrajudicial statement at the preliminary examination. Cross-examination suffices because it provides the trier of fact, i.e., the magistrate, the opportunity to observe the declarant‘s demeanor and to assess the credibility of his prior hearsay utterance.
It is unimportant for purposes of this point of our analysis that defendants made no attempt to utilize this procedure. (Cf. People v. Green, supra, 3 Cal.3d at p. 990; People v. O‘Quinn (1980) 109 Cal.App.3d 219, 228-229.)
Right to Due Process
The trial court, in addition to ruling that
The basis for this conclusion emanates from the realms of due process, particularly the principle that “the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” (In re Winship (1970) 397 U.S. 358, 364; accord Sandstrom v. Montana (1979) 442 U.S. 510, 520; Patterson v. New York (1977) 432 U.S. 197, 204; Mullaney v. Wilbur (1975) 421 U.S. 684, 685; People v. Dillon (1983) 34 Cal.3d 441, 472-473; People v. Burres (1980) 101 Cal.App.3d 341, 352; see
Defendants’ invocation of these rules in the trial court arose within the larger context of their claim that
We agree that, for purposes of our review, it has not been conclusively established that
Due process is not a static concept. Determinations of what process is due requires a sensitive appreciation of context and a rejection of mechanical formulas. Half a century ago Justice Cardozo put it thus: “Due process of law requires that the proceedings shall be fair, but fairness is a relative, not an absolute concept. It is fairness with reference to particular conditions or particular results.” (Snyder v. Massachusetts (1934) 291 U.S. 97, 116.)
The courts of this state take a similar approach: “Due Process is a flexible concept; the precise procedures necessary to prevent the arbitrary deprivation of a constitutionally protected interest vary ‘with the subject-matter and the necessities of the situation.‘” (In re Bye (1974) 12 Cal.3d 96, 103, cert. den., 420 U.S. 966; accord Fort v. Board of Medical Quality Assurance (1982) 136 Cal.App.3d 12, 23; see Horn v. County of Ventura (1979) 24 Cal.3d 605, 617.)
The due process principles that the prosecution must prove guilt beyond a reasonable doubt and cannot shift this burden to the defendant, do not command a defendant to stand aloof from the processes which may eventually result in the loss of his liberty. Due process is not synonymous with total inaction and noninvolvement. Constitutional rights are not self-enforcing. Some measure of responsibility for their vitality rests with their beneficiaries. Accordingly, the principle has evolved that in general “it is the accused who must act to protect his interests. . . .” (See In re Koehne (1960) 54 Cal.2d 757, 759; People v. Watson (1977) 75 Cal.App.3d 384, 399.) Some actions undertaken by the defense may result in benefit to the рrosecution, yet due process is not violated. To cite just one example of this, a defendant may have to involve himself in discovering and producing for trial an informer who may give damaging testimony. (See People v. Borunda (1974) 11 Cal.3d 523, 527; Price v. Superior Court (1970) 1 Cal.3d 836, 843; People v. Hardeman (1982) 137 Cal.App.3d 823, 828.)
With regard to the “demand” of which the trial court mentioned in its comments quoted above, defendants and the People have treated it as equivalent to a telephone call from the defense to the prosecutor obligating the prosecutor to secure the personal attendance of the declarant at the preliminary examination. They dispute whether such a call would constitute “reasonable efforts” within the meaning of subdivision (c). Analysis of this point is aided by analogy to the rules governing admission of hearsay evidence.
One of the exceptions to the hearsay rule allows introduction of an unavailable witness’ former testimony if “reasonable diligence” has been exercised to secure the witness’ attendance. (See
As previously noted, defendants made no efforts to utilize the procedures of
The magistrate, sitting as the trier of fact, and having due regard for the principles of due process, will be best situated to determine what constitutes “reasonable efforts” within the meaning of
Neither the People nor this court excludes the possibility that “reasonable efforts” might be construed in a manner which may impinge upon due process. But we cannot accede to defendants’ exaltation of that concept which takes no account of the countervailing principle that a defendant must act to protect his own interests and which excludes the possibility of a telephone call satisfying
Privilege Against Self-incrimination
A defendant‘s right not to be compelled to produce testimonial evidence which may tend to incriminate himself is guaranteed by the United States Constitution (
Defendants’ method of raising the applicability of this issue in the trial court was to assert that “[a]ny attempt to lighten the prosecution‘s burden of proof or burden of going forward with the evidence violates a defendant‘s right against self-incrimination, secured by the Fifth Amendment to the United States Constitution and applied to the states through the Fourteenth (see generally People v. Collie (1981) 30 Cal.3d 43.” We have previously examined this argument on the premise that it involved principles of due process. Although the self-incrimination aspect of defendants’ argument does not appear to have been accepted by the trial court, we address it in the interest of completeness.
For a number of years the California and United States Supreme Courts tended to view self-incrimination primarily as a factor which affected the prosecution‘s burden of proving guilt beyond a reasonable doubt. For example, the California Supreme Court in 1969 stated: “We recognize, of course, with the United Stаtes Supreme Court, ‘that the American system of criminal prosecution is accusatorial, not inquisitorial, and that the Fifth Amendment privilege is its essential mainstay. . . . Governments, state and federal, are thus constitutionally compelled to establish guilt by evidence
So long as the analytical focus remained on the defendant himself, the joinder of self-incrimination and due process was accepted at both state and federal levels. Divergence appeared when the courts confronted the problem of whether the privilege against self-incrimination extended beyond the defendant himself. Whereas the federal constitution would not reach statements made by third parties to the defense (see Fisher v. United States (1976) 425 U.S. 391, 396-401; United States v. Nobles (1975) 422 U.S. 225, 233-234; Couch v. United States (1973) 409 U.S. 322, 327-328) the California constitutional privilege was held to cover such vicarious defensive matters. (People v. Collie, supra, 30 Cal.3d at pp. 51-52, fn. 2; Allen v. Superior Court (1976) 18 Cal.3d 520, 525; People v. Thornton (1979) 88 Cal.App.3d 795, 799-801.) Any claim that defendants’ privilege against self-incrimination is in any way implicated by Kearney‘s statement must therefore be founded solely upon the protections of
We have examined defendant‘s contention to determine whether a question of self-incrimination is presented, and if so, in what fashion. We conclude that there is no aspect of the contention to which the privilege applies. There is no direct protection because the statement is not made by either of defendants. There is no derivative protection under the California Constitution because the statement was not made either by a defense witness or to the defense in the form of an investigation. (Cf. People v. Collie, supra, 30 Cal.3d 43; People v. Thornton, supra, 88 Cal.App.3d 795.) The statement is instead from the victim, the quintessential nondefense witness.
We conclude that defendants do not seriously press a claim that their privilege against self-inсrimination has been or will be impaired by
Defendant‘s arguments are innovative and possess an alluring superficial plausibility. At some later stage of proceedings where a greater factual showing is made, or in some other situation, such arguments may prove to be well taken. They cannot be sustained on this appeal.
“The rule is well established . . . that one will not be heard to attack a statute on grounds that are not shown to be applicable to himself and that a court will not consider every conceivable situation which might arise under the language of the statute and will not consider the question of constitutionality with reference to hypothetical situations.” (In re Cregler (1961) 56 Cal.2d 308, 313; see Willadsen v. Justice Court (1983) 139 Cal.App.3d 171, 178; People v. Parker (1973) 33 Cal.App.3d 842, 849; People v. Maugh (1969) 1 Cal.App.3d 856, 862.) Over a century ago the United States Supreme Court stressed the wisdom and neсessity for this rule: “Hypothetical cases of great evils may be suggested by a particularly fruitful imagination in regard to almost every law upon which depend the rights of the individual or of the government, and if the existence of laws is to depend upon their capacity to withstand such criticism, the whole fabric of the law must fail.” (United States v. Lee (1882) 106 U.S. 196, 217.) Defendants’ display of hypothetical situations furnishes an inappropriate basis for rending that all too delicate and currently tattered fabric.
In order to avoid any misunderstanding, we emphasize the very limited scope of our holding. Dangers and problems there may well be in the operation of
The order setting aside the information is reversed.
Low, P. J., concurred.
HANING, J.—I respectfully dissent. The right of confrontation guaranteed by the
As the majority correctly states, the right of confrontation and cross-examination extends to the preliminary hearing. (Jones v. Superior Court (1971) 4 Cal.3d 660; Jennings v. Superior Court (1967) 66 Cal.2d 867.)
We are dealing with first instance testimony—the direct testimony of the victim of an alleged crime—a victim who has not been shown to be unavailable to appear and testify. I am unaware of any existing decision which permits the prosecution to introduce the testimony of the alleged victim by written statement, if the victim is alive and available to testify. The majority notes that due process is a flexible concept, but I doubt that it stretches this far.
The majority reasons that defendant can avoid the operation of the statute and secure his right of confrontation by merely notifying the prosecutor that he wants the witness present. However, this is not what the statutes says. I agree that we are required to interpret the statute so as to uphold its constitutionality, if possible (Pryor v. Municipal Court (1979) 25 Cal.3d 238, 253-255; Moyer v. Workmen‘s Comp. Appeals Bd. (1973) 10 Cal.3d 222, 229-230), but we are not licensed to rewrite it. It states, in part, that ”[i]f the defendant makes reasonable efforts to secure the attendance of the witness but is unsuccessful in securing his or her attendance, the court shall grant a short continuance at the request of the defendant and shall require the prosecuting attorney to present the witness for cross-examination . . . .” (
As a general rule, the defendant is not required to lighten the prosecution‘s burden by being forced to produce the evidence the state is relying upon to convict him. (See, e.g., People v. Collie (1981) 30 Cal.3d 43, 50; Allen v. Superior Court, supra, 18 Cal.3d at pp. 524-525; Prudhomme v. Superior Court, supra, 2 Cal.3d at pp. 326-327.) Although these cases deal primarily with Fifth Amendment rights and discovery, the principle remains that the prosecution has the burden of establishing probable cause.
In summary, I conclude the statute is unconstitutional on its face unless we judicially rewrite it, and that we are not permitted to do. One of the primary purposes of the preliminary hearing is to weed out groundless and unprovable charges in order, inter alia, to save the time and expense of trial for both sides.1 (People v. Terry (1962) 57 Cal.2d 538, 554; People v. Elliot (1960) 54 Cal.2d 498, 504.) In order to do so the magistrate must be able to make an informed and reasoned decision based upon the evidence. This requires a decision on the credibility of the witnesses. The affidavit contemplated by
Cross-examination has been described as “the greatest legal engine ever invented for the discovery of truth.” (5 Wigmore, Evidence (Chadbourn rev.ed 1974) § 1367, p. 32; In re Miguel L. (1982) 32 Cal.3d 100, 107-108; People v. Fries (1979) 24 Cal.3d 222, 231.) It is guaranteed by the Constitution and denied by the statute under consideration. The bottom line for reviewing any statute is that it must pass constitutional muster, and this one does not. For that reason, I would affirm the order of dismissal.
Respondents’ petitions for review by the Supreme Court were denied May 31, 1985.