Hawkins v. Superior Court

RICHARDSON, J.

I respectfully dissent. My disagreement with the majority is twofold: (1) the grand jury’s indictment procedure as presently used in California is expressly authorized by our state Constitution which also vests in the California Legislature the exclusive power to abolish or amend the procedure; and (2) even if we possessed the authority to modify the present grand jury system, no invidious discrimination or inequality exists which would mandate the postindictment hearing procedure fashioned by the majority.

1. No Judicial Power to Amend Indictment Procedure

There is a preliminary issue barely explored by the majority: Do we possess the authority under the California Constitution to invalidate the existing procedures and to amend them by providing indicted defendants with a postindictment preliminary examination on demand? I think not. It is my premise that the present indictment procedures are necessarily constitutionally valid, because they are the product of legislative choice pursuant to an express constitutional grant. In short, the state Constitution expressly empowered the Legislature to create the existing system. It follows that courts, including this one, lack authority to destroy the system.

*611 In September 1878, when the delegates first met in the Assembly Chamber of the State Capitol in Sacramento to frame a new Constitution, they were faced with the controversial task, among others, of determining the future role which the grand jury would play in criminal prosecutions. The 1849 Constitution had recited that “No person shall be held to answer for a capital or otherwise infamous crime, . . . unless on presentment or indictment of a Grand Jury; . . .” (Art. I, § 8.) By 1878, a procedure had developed whereby the accused was first examined by a magistrate and, if not ordered discharged, was then held awaiting a grand jury hearing and indictment. (Kitts v. Superior Court (1907) 5 Cal.App. 462, 465 [ 90 P. 977 ]; see 1 Cal. Constitutional Convention (1880) Debates & Proceedings, pp. 310, 313.) At the constitutional convention, an amendment was proposed which would enable the Legislature to amend the existing indictment system and to provide for prosecution by information, following a magistrate’s examination. (Id., pp. 308-309.)

Several delegates spoke in favor of the total abolition of the grand jury system on the ground of various asserted abuses in its procedures; other delegates urged its preservation. (Id., pp. 309-317.) Finally, delegate Freeman explained that the proposed constitutional amendment was not designed either to abolish or preserve the grand jury system, but to permit the people, through their elected representatives, to choose whichever system was deemed most desirable. As he stated, “I don’t know that it is necessary that we should say here to-day in Constitutional Convention that the Grand Jury system is more of good or more of evil; but I think at least the question is a debatable one that we can leave to the Legislature to discuss, for them to have or not to have a Grand Jury, and let them prescribe, if they want a Grand Jury at all, what cases, and in what instances, cases should be considered by the Grand Jury.” (Id., p. 317, italics added.) Thereafter, delegate Shafter confirmed delegate Freeman’s analysis, stating that “It is the proposition of the Judiciary Committee that this whole matter be delegated to the Legislature . ... It leaves the power of prosecution by indictment or presentment—information it is called here—to the discretion of the Legislature. They can restore it as a whole and leave out the word ‘information,’ or they can follow out the plan indicated here, and prosecute by both indictment and information. . . . [¶] I trust this Convention will leave this matter where it belongs, where the people themselves, through their legislators, may have control of it.” (Id., p. 318, italics added.)

No further debate on the matter occurred and, as finally amended, the following constitutional amendment was adopted by the delegates on *612 May 7, 1879: “Offenses heretofore required to be prosecuted by indictment shall be prosecuted by information, after examination and commitment by a Magistrate, or by indictment, with or without such examination and commitment, as may be prescribed by law. A grand jury shall be drawn and summoned at least once a year in each county.” (Art. I, § 8, italics added.)

No probing constitutional analysis is necessary to discern the plain meaning of the foregoing language, in light of the sequence of events at the constitutional convention: The Legislature was empowered to provide for the prosecution of criminal cases, either by information or by grand jury indictment. Prosecution by information was to occur following examination and commitment by a magistrate. However, prosecution by indictment could occur “with or without such examination and commit ment” as the Legislature may provide. Quite plainly, then, the present legislative system of alternative prosecution procedures, including grand jury indictment without examination and commitment by a magistrate, was expressly authorized by article I, section 8, of the California Constitution. As stated in Kitts v. Superior Court, supra, 5 Cal.App. 462 , “The effect of this provision of the constitution is, as may readily be seen, that an indictment by a grand jury may be found for a felony without a preliminary examination of the charge by a magistrate, . . .” (P. 465, italics added.)

It seems equally clear that, not only is the present grand jury system authorized by the state Constitution, but also that it is the Legislature, and not this court, which is vested with the exclusive power to alter or abort that system. We ourselves have explicitly acknowledged this. In People v. Bird (1931) 212 Cal. 632 [ 300 P. 23 ], we said that “It is apparent from these debates [leading to the adoption of former section 8] that there was a sharp conflict of opinion whether the power should be vested in the legislature to adopt either the grand jury system or prosecution by information. It was finally decided to continue the grand jury system and provide for the alternative method of prosecution by information preceded by an examination and commitment by a magistrate, the procedure in either case to be left to legislative control.” (P. 643, italics added; accord Fitts v. Superior Court (1936) 6 Cal.2d 230, 241 [ 57 P.2d 510 ].)

In 1934, the people adopted a further amendment to section 8 of article I, preserving the language of the original section, quoted above, and adding various specific provisions implementing the basic provisions. In *613 1974, however, the voters approved a more simplified version of section 8,’ renumbering the provision as section 14, which provides in pertinent part as follows: “Felonies shall be prosecuted as provided by law; either by indictment or, after examination and commitment by a magistrate, by information(Italics added.) As the majority herein concedes (ante, p. 594) no change in meaning was intended by the 1974 amendment; the requirement of examination and commitment by a magistrate very clearly applies only to proceedings by way of information, not indictment. This conclusion regarding the intent of the 1974 amendment is confirmed by both the reports of the Constitution Revision Commission and by the ballot arguments presented to the voters before the November 1974 General Election.

The commission’s preelection report observed that “Existing Section 8 contains extensive provision for criminal indictment procedures. . . . [¶] Indictment procedures are significant because they assure certain guarantees to all those accused of crimes. Although much of the procedural material in existing Section 8 is recommended for transfer to statutes, the Commission feels that retention of some basic provisions is warranted and desirable. [¶]. . . The entire grand jury system has many deficiencies which should be corrected. The Commission believes that the Legislature is best equipped to reform this system and that reform should not be hampered by unnecessary constitutional restrictions.” (Cal. Const. Revision Com., Proposed Revision of the Cal. Const. (1971) pt. 5, p. 22, italics added.) Nowhere in the commission’s report is any reference made to the issue now before us, namely, the validity of prosecution by indictment in the absence of a preliminary examination by a magistrate.

Similarly, in the official California voters pamphlet prepared for the November 1974 General Election, no mention is made of the indictment-preliminary examination issue. The pamphlet recites only that the proposed amendment “deletes from the Constitution . . . detailed rules of criminal indictment procedure . . .” since such matters are deemed “suited for statutory enactment.” (Ballot Pamp., Gen. Elec. (Nov. 1974) p. 26, italics added.)

It therefore seems beyond legitimate dispute that, since 1879, the California Constitution has expressly authorized the present indictment procedure challenged in this case, and has vested in the Legislature the sole power to change that procedure. Four years ago the voters were told that this was exactly the result for which they were voting. I respectfully suggest that the majority’s sole response to the foregoing point is wholly *614 inadequate. The majority, ignoring the constitutional history set forth above, merely observes that both new section 14 and former section 8 refer to indictment or information procedure “as provided by law.” According to the majority, “The term ‘law,” of course, encompasses judicial decisions as well as legislative enactments. (Cf. Evid. Code, § 160.) Thus, while the Constitution authorizes the use of grand juries to indict criminal defendants, it leaves to the Legislature and the courts the task of developing procedures, consistent with other state constitutional provisions, for implementing that mode of initiating prosecutions.” (Ante, p. 594, italics added, fn. omitted.) The argument is ingenious, but invalid.

There are two obvious flaws in the majority’s cursory analysis. First, as we have seen, the convention debates disclose that the purpose underlying the adoption in 1879 of section 8 was to permit the people of this state, acting through the Legislature, to decide whether, and to what extent, the grand jury system should be modified or replaced. None of the delegates indicated any intent whatever to authorize the courts in general, or this court in particular, to “equalize” the indictment and information procedures in the manner proposed by the majority herein.

Second, and contrary to the majority’s assumption, the cases have uniformly held that the phrase “as provided by law” in a constitutional provision such as former section 8 and present section 14 “. . . look[s] to actual legislation upon the subject, and in no just sense can be extended to a permission of the exercise of this power to others.” (Exline v. Smith (1855) 5 Cal. 112, 113 , italics added; see Gilliam v. California Emp. Stab. Com. (1955) 130 Cal.App.2d 102, 115 [ 278 P.2d 528 ]; Howard v. Cook (1938) 59 Idaho 391 [ 83 P.2d 208, 210 ]; McLavy v. Martin (La.Ct.App. 1964) 167 So.2d 215, 221 ; Lewis v. Florida State Board of Health (Fla.Ct.App. 1962) 143 So.2d 867, 869 ; State v. State Board of Land Commissioners (1957) 131 Mont. 65 [ 307 P.2d 234, 236 ]; Black’s Law Dict. (4th rev. ed. 1968) p. 1388.) While the majority relies exclusively upon the language of Evidence Code section 160, here again they are frustrated for that section affords them no support whatever. Section 160 is inapposite for it merely defines the word “law” as the term is used in the Evidence Code. (Evid. Code, § 100.)

Our Exline case, supra, involved a section of the state Constitution which authorized a waiver of jury trial as may be “prescribed by law.” (Former art. I, § 3.) We held that the quoted phrase contemplated “actual legislation” and could not be construed as authorizing the courts to specify the conditions under which a waiver could be found to exist. In *615 the present case, especially in the light of the constitutional debates, we must likewise construe the language of section 14 (and former § 8) of article I as vesting in the Legislature the sole power to develop and alter the procedures for initiating a criminal prosecution.

To summarize, the majority has clearly erred in assuming that we are vested with a broad unlimited authority under the California Constitution to tack on new procedures for the implementation of the grand jury systemTAlthough courts have general power under the equal protection clause of the state Constitution to find specific legislation invalid, that authority may not be extended to strike down a legislative scheme which hasT developed pursuant to a direct and express constitutional grant. We possess no right whatever to rearrange or refashion to our own liking the provisions of article I, section 14, in which the people have expressly said that an examination need not accompany the indictment.

The legislative intent on the subject of grand jury indictment procedure is readily ascertainable in the light of the recent defeat of two bills (Sen. Bill No. 815 and Assem. Bill No. 1777) which would have limited the grand jury’s indictment function and extended the procedural rights of the accused in grand jury hearings. As I have explained, it was the clear intent of the framers of our Constitution that the controversial subject now before us ultimately be left in the hands of the people of this state, acting through their elected representatives. The majority’s action today in removing the issue from the people’s hands wholly frustrates that salutary purpose.

2. No Denial of Equal Protection

Even were we to assume, for purposes of argument, that this court has the power to impose a postindictment preliminary examination, contrary to the view expressed above, no good reason appears for doing so, as the present system operates in an entirely constitutional fashion. Indeed, prior to today’s decision, we and other courts have uniformly so held. (People v. Sirhan (1972) 7 Cal.3d 710, 746-747 [ 102 Cal.Rptr. 385 , 497 P.2d 1121 ]; People v. Goldenson (1888) 76 Cal. 328, 345 [ 19 P. 161 ]; In re Wells (1971) 20 Cal.App.3d 640, 649 [ 98 Cal.Rptr. 1 ]; People v. Pearce (1970) 8 Cal.App.3d 984, 986-989 [ 87 Cal.Rptr. 814 ]; People v. Newton (1970) 8 Cal.App.3d 359, 388 [ 87 Cal.Rptr. 394 ]; People v. Rojas (1969) 2 Cal.App.3d 767, 771 [ 82 Cal.Rptr. 862 ]; People v. Flores (1969) 276 Cal.App.2d 61, 65-66 [ 81 Cal.Rptr. 197 ]; People v. Dale (1947) 79 Cal.App.2d 370, 373-374 [ 179 P.2d 870 ].)

*616 As we stated recently in Sirhan , “The use of indictments in all cases warranting serious punishment was the rule at common law [citation], and is required in certain federal prosecutions by the Fifth Amendment of the federal Constitution. It has long been the rule in this state, however, that felonies may be prosecuted by either indictment or information. [Citations.] Although there are differences between the two procedures, a defendant who is proceeded against by an indictment is not denied due process or equal protection. [Citations.] It similarly does not violate due process to initiate a prosecution by an information rather than an indictment. [Citations.]” (7 Cal.3d at pp. 746-747.)

The majority cites but a single out-of-state case as authority for the general proposition that defendants are entitled to a postindictment preliminary hearing. (People v. Duncan (1972) 388 Mich. 489 [ 201 N.W.2d 629 ].) Yet the Duncan court declined to place its decision on constitutional grounds, relying instead upon the court’s inherent power to regulate criminal procedure. In California, however, such inherent powers may not be exercised to nullify existing legislation. (E.g., People v. Municipal Court (Runyan) (1978) 20 Cal.3d 523, 528 [ 143 Cal.Rptr. 609 , 574 P.2d 425 ].)

Research has disclosed no state or federal court case holding, as the majority herein does, that a postindictment hearing is required as a matter of constitutional law. This is a wholly novel proposition. In fact, it is very evident that, under the federal Constitution, there exists no constitutional right to a preliminary examination. (See Gerstein v. Pugh (1973) 420 U.S. 103, 118-119 [ 43 L.Ed.2d 54, 67-68 , 95 S.Ct. 854 ] [no probable cause hearing required unless pretrial confinement is sought]; Beck v. Washington (1962) 369 U.S. 541, 545 [ 8 L.Ed.2d 98, 104-105 , 82 S.Ct. 955 ]; Lem Woon v. Oregon (1913) 229 U.S. 586 [ 57 L.Ed. 1340 , 33 S.Ct. 783 ]; Fellman, The Defendant’s Rights Today (1976) p. 43; Wharton, Criminal Procedure (1974 ed.) § 144, pp. 303-304 and cases cited.) Thus, the federal courts have uniformly held that a defendant in a criminal case is not entitled to a preliminary examination following a grand jury indictment. (Harris v. Estelle (5th Cir. 1974) 487 F.2d 1293, 1296 ; United States v. Anderson (4th Cir. 1973) 481 F.2d 685, 691 ; United States v. Le Pera (9th Cir. 1971) 443 F.2d 810, 811 ; United States v. Conway (3d Cir. 1969) 415 F.2d 158, 160-161 .)

The majority relies upon Coleman v. Alabama (1970) 399 U.S. 1, 9-10 [ 26 L.Ed.2d 387, 396-397 , 90 S.Ct. 1999 ], for the proposition that a preliminary examination is a “critical stage” of the prosecution process and thereby becomes one in *617 which counsel’s presence is required. As pointed out in a recent federal case, however, “The import of Coleman is that once a state provides a preliminary hearing, counsel must be afforded at that hearing, not that such a hearing is a minimum requirement of Fourteenth Amendment due process.” (Harris v. Estelle, supra, 487 F.2d at p. 1296 .) Thus, although both the indictment and information procedures are directed toward determining whether probable cause exists to hold the accused, such a probable cause hearing is not constitutionally required to be formal or adversary in nature; the hearing is not necessarily a “critical stage” in the prosecution. (Gerstein v. Pugh, supra, 420 U.S. 103, 122-123 [ 43 L.Ed.2d 54, 70 ].)

In California, the preliminary examination has assumed an adversary character by reason of the direct confrontation between the accused and his accusers which occurs at the hearing. Accordingly, the accused is afforded a panoply of procedural rights, including right to counsel, right to confront, cross-examine and compel the attendance of witnesses, and right to present exculpatory evidence. Although these rights may be unavailable to the witness at a grand jury hearing, the differences in procedure are necessarily inherent in the well established differing functions of grand jury and magistrate. Although both the indictment and information procedures are aimed at determining the ultimate question whether probable cause exists to hold the accused for trial, the grand jury is a distinct investigative body, conducting its sessions in private, without public accusation, in accordance with procedural rules and safeguards (discussed below) deemed sufficient in light of the nonadversary nature of the proceedings. Grand jury hearings are not the equivalent of a criminal trial or pretrial hearing, nor were they designed as such. (See United States v. Calandra (1974) 414 U.S. 338, 342-344 [ 38 L.Ed.2d 561, 568-569 , 94 S.Ct. 613 ]; People v. Pearce, supra, 8 Cal.App.3d 984, 987 ; People v. Flores, supra, 276 Cal.App.2d 61, 65-66 ; People v. Dupree (1957) 156 Cal.App.2d 60, 64-66 [ 319 P.2d 39 ]; Witkin, Cal. Criminal Procedure (1963) Proceedings Before Trial, § 175, p. 167.)

Mr. Witkin, a widely recognized legal scholar, emphasizes the vital and critical distinction between the indictment and information proceedings: “The rule that the person under investigation is not entitled to appear or offer evidence is long established. It is based on the fundamental distinction between the investigatory and judicial functions: The grand jury is not a court, and its proceedings are not a criminal trial; hence the constitutional rights of confrontation of witnesses and production of *618 evidence do not apply until the subsequent trial on an indictment found.” (Witkin, supra, p. 167.)

The Judicial Council of California observes that, among other advantages, by reason of its nonadversary nature grand jury hearings can eliminate substantial delays inherent in preliminary examination proceedings, especially in cases involving multiple narcotics purchases or other illegal transactions, multiple defendants (such as the present case), and complex fraud issues. (Judicial Council of Cal., Annual Rep. (1974) pp. 48-49.) Quite obviously, these benefits would be entirely lost if the accused were entitled to demand an adversary postindictment preliminary examination, thereby necessitating a complete “retrial” of the charges before a magistrate.

The United States Supreme Court in Gerstein v. Pugh, supra, 420 U.S. 103, 116-119 [ 43 L.Ed.2d 54, 66-68 ], held that no such adversary hearing is required, so long as the accused is afforded a “neutral” probable cause hearing independent of police and prosecution. In California, grand jurors are required by law to pledge their neutrality. (Pen. Code, § 911; see § 939.5.) Contrary to the majority’s unwarranted accusation that the grand jury lacks independence and is dominated by the prosecuting attorney, we have stressed that “A grand jury’s function is to return an indictment against a person only when the evidence presented to it indicates that he has committed a public offense. It is no Star Chamber tribunal empowered to return arbitrary indictments unsupported by any evidence. On the contrary the necessity of basing an indictment upon evidence is implicit in section 921 of the Penal Code . . . .” (Greenberg v. Superior Court (1942) 19 Cal.2d 319, 321 [ 121 P.2d 713 ], italics added.)

Moreover, grand jury proceedings contain additional safeguards against arbitrary action. In view of the serious consequences and possible harm to the accused’s reputation if information regarding the grand jury’s investigation were disclosed, its proceedings are conducted in total secrecy (Pen. Code, §§ 924.1-924.3, 939); every indicted defendant is entitled to a complete transcript of the proceedings (id., §§ 938.1, 995a; People v. Pipes (1960) 179 Cal.App.2d 547 [ 3 Cal.Rptr. 814 ]); witnesses, including suspects, are protected by the privilege against self-incrimination (Evid. Code, §§ 930, 940); only evidence admissible at trial may be considered by the jurors (Pen. Code, § 939.6 subd. (b)); and the jurors are authorized tó order additional evidence presented to them when they have reason to believe it will explain away the charge (id., § 939.7).

*619 Most importantly, under a recent decision of this court, the prosecution must inform the grand juiy “of evidence reasonably tending to negate guilt.” (Johnson v. Superior Court (1975) 15 Cal.3d 248, 255 [ 124 Cal.Rptr. 32 , 539 P.2d 792 ].) Under Johnson , defense counsel may submit exculpatory evidence to the grand jury simply by first presenting such evidence to the prosecution. The foregoing safeguards, coupled, of course, with the fact that every defendant (1) may seek judicial review of the indictment (Pen. Code, §§ 995, 999a), and (2) is entitled to the full panoply of procedural due process rights at his trial, amply protect the indicted defendant from arbitrary or capricious action by either the prosecution or the grand jury itself.

The majority suggests that the preliminary examination serves an essential secondary function of providing the accused with pretrial discovery regarding the case against him. Yet the íñdieted- defendant has . adequate means of pretrial discovery. “In felony cases, the preliminary \ examination or grand jury hearing transcripts will ordinarily provide a valuable source of pretrial information. In addition, police reports and witnesses’ statements are readily discoverable upon a proper showing of need. [Citation.] Furthermore, nothing ordinarily would prevent the accused from interviewing prosecution witnesses to ascertain their version of the events. [Citations.]” (People v. Municipal Court (Runyan), supra, 20 Cal.3d 523, 531 .)

Despite the foregoing safeguards and benefits available to the indicted accused, the majority asserts that under the present system “a defendant charged by indictment is seriously disadvantaged in contrast to a defendant charged by information.” (Ante, p. 592.) To the contrary, I would conclude on the basis of the numerous authorities cited above that the differences in the two procedures are matters which do not rise to the level of unconstitutional deprivations of equal protection of the laws.

For the foregoing reasons, I would deny the writ.

Clark, J., concurred.

The petition of the real party in interest for a rehearing was denied December 13, 1978. Clark, J., and Richardson, J., were of the opinion that the petition should be granted.