*1 17, 1969.] 742. Fifth Dist. Dec. No. [Crim. PEOPLE, Plaintiff and
THE Respondent, ROJAS,
JOE Defendant and Appellant.
Counsel Walker, E. Richard by the Court of appointment Appeal, Defendant and Appellant. General,
Thomas C. Jack Lynch, Attorney R. and Elliott Winkler D. General, McCarty, for Plaintiff and Deputy Attorneys Respondent. Opinion
STONE, 19, 1968, J. Defendant wason June an indictment charged with, I, returned the Yolo Grand violation County Jury, count Code, unlawfully selling furnishing 11501 of Health Safеty wit, heroin; II, violation of section count narcotic other than marijuana, wit, than marijuana, a narcotic other unlawfully possessing offense, wit, heroin; III, violation of felony count conviction prior of the Health and Code. Safety section 11501 indictment, *3 Penal Code section the under
Defendant moved to quash 995; denied, I not to counts guilty and defendant the motion was pleadеd II, in count III. The alleged conviction felony and and denied the prior before the court trial, granted but the trial set day matter was for jury I not to count of the his of guilty motion to withdrаw plea defendant’s in count conviction III. charged and to admit felony indictment prior I, count and admitted then of to guilty prior Defendant entered plea convictiоn, district the court granted attorney’s felony whereupon II in the interests of justice. dismiss count motion to in order to criminal proceedings Defendant then moved to suspend court, narcotic addict. The in granting determine he was a whether motion, for commitment district file attorney petition directed the in the ultimate confinement Narcotic of Cоrrections Department Center, section under 3051 of the Detention, Treatment and Rehabilitation and Institutions Code. Welfare
On after the court November medical repоrts, considering found defendant to be a narcotic addict and ordered his commitment Detention, of Corrections for confinement at the Narcotic Department аnd Corona, Treatment Defendant Facility Rehabilitation at California. order, filed a of notice said and a written statement under Penal appeal in Code section 1237.5 thereof. A of the court support judge superior cause certified that for the existed. appeal probable of defendant’s is his commitment to the that order оf gist argument of in the Narcotic custody of Director Corrections for confinement Detention, Treatment and was his Facility Rehabilitation predicated upon indictment, I wаs of to count of the and that the indictment void guilty plea that violated constitu- irregularities in in his grand jury proceedings is to invalid say, constitutionally tional That of rights. plea guilty will not commitment such grounded support plea. is that a witness other than the one argument being Defendant’s principal be grand present during taking examined by jury permitted that and two under- The rеcord reflects two narcotic chemists testimony. were in the grand for the Bureau Narcotics Enforcement cover agents One chemist one of some during taking testimony. rоom jury testified, and agent when an undercover undercover were agent present were the other and one chemist when both present undercover agents chemist testified. other Defendant asserts than the persons witness under Penal This interrogation violates Code section 939. section “No ... to be the session of person during provides: present permitted the members witnesses under examina- grand except actually be tion. No shall be of the expression person permitted present during grand or the their votеs matter opinions jurors, giving upon any before them.” Flores, People call our attention to
Counsel for 197], that similar circum- holding stances there was no violation of the statute. The court reasoned that since “witnesses” is while the the word “other” witnesses be plural, may present takes the of a witness. testimony 939; We take a somewhat different view оf we deem the *4 words of the “actually language examination” to be the critical being statute. this does not Obviously interrogated apply witnesses a the of witnesses but where witnеss is not jointly, single testifying, and under examination would seem to be to the intent actually spirit contrary witnesses, A one of section of hostile if is domineer bevy 939. particularly the of abuses of the indictment ing, grave grand jury portends possibility hand, the can see On other we no inconvenience to the procedure. great the witnesses if those who are about and who grand testify or those jury room, have are excluded the in view of grand testified defendant of taking exclusion of a and his attorney during testimony. But the error is not reversible error se. per It is defendant’s violation position that of Penal Code section 939 denial constituted a of due law as process Fourteenth by guaranteed Amendment. under сertain Undoubtedly circumstances a viola tion of 939 would constitute denial of due but the process, defendant does; has burden of that it it demonstrating must be shown that a miscarriagе justice resulted. Defendant has failed wholly to meet burden; he rests his contention naked upon assertion that the statute was violated. review of
Our record of grand convinсes jury proceedings us there was evidence ample a true bill under the indictment support It also procedure. that same appears evidence would warrаnt holding defendant to answer had the been route preliminary hearing followed. In absence of showing of we are inclined not prejudice, reverse because what we conceive to be violation of Penal Code section 939.
771 Const, Watson, P.2d (Cal 13; VI, 46 818 [299 art. v. Cal.2d § 243].) a criminal
Defendant next contends that the charge process bringing true, argues, defendant indictment It is as is unconstitutional. have been that rights a defendant certain indictment denies procedure Consti the California under the United States Constitution and recognized tution, testify who as the to confront witnesses right such of a defendant to cross- him, the right and against right have his attorney present, However, consistently approved examine adverse witnesses. the courts have use hold to answer. a defendant procedure hear antedates information Historically, preliminary procedure method. ing cаses, has been in a both federal
The touched number of question state, has been although inversely by issue usually presented because defendant’s contention that constitutional were violated rights he information rather than indictment. charged by upshot defendant’s violated where a rights cases is that a constitutional are not either indictment or infоrmation. criminal initiated by prosecution California, 111, (Hurtado 292]; v. 516 L.Ed. 110 U.S. 4 S.Ct. Ex [28 Sternes, Reed, parte 38]; People 82 Cal. v. 210 245 P. Cal.App.2d [23 Barreras, 428]; 84 People v. Cal. [5 States, 454].) Boyes 828; April In re (Seе United 298 F.2d Rptr. *5 F.2d Jury, 263.) Term Grand 239 method;
A relief under if defendant is not without the grand jury entirely he had him he grand jury grounds may believes no which to indict and, court, seek relief in the under Penal Code section if superior rеlief, court, denied for a writ of may in petition prohibition appellate Court, under Penal (Williams Superior Code section v. 999a. 71 Cal.2d 987].) 458 P.2d [80 Cal.Rptr. Defendant makes a relatеd third that the abused attorney district point, indictment. His in defendant grand jury charging way procedure that the avoid a used is district to argument attorney, hearing, preliminary with the commis- charge defendant grand jury procedure him and sion a crime. He contends the purpose prevent This, the witness. defendant cross-examining argues, per- attorney the district a defendant court attorney get mits before superior without against on a “skeleton” case and to putting opposition, proceed defendants at same There hеaring, using scatter-gun many approach. an charge, argument. in record to eleventh-hour justify nothing does not that the violated holding Since the record justify proceedings lаw, defendant’s constitutional due right we decline to process an engage in academic discussion of the question. is affirmed. judgment J.,
Gragano, concurred. COAKLEY, result, J. I concurin thе without with disagreeing Flores, 276 I While consider it the 197]. safer and better and the I practice, one which believe is in most employed counties, i.e., to one witness permit only at a time in presence room, I grand jury whether Penal Code question section 939 it. If requires had Legislature intended to forbid the at a grand session presence time, of more than one witness at it seems to me that it would have used the rather than the singular, of the word “witness.” It plural, is not difficult to situations wherein the conjure of more than one witness in the room would sеrve convenience of the greatly jurors permit more than one witness questions present, purposes clarifi- cation, without of defendant. This prejudice be may rights why term, Legislature-used the “witnesses.” I would leave Accordingly it to the Legislature or Court to make the if clarification Supreme either Flores, with disagrees in interpretation supra.