# Mills v. Superior Court

> California Supreme Court · December 11, 1986 · 42 Cal. 3d 951

URL: https://www.frixlaw.com/law-library/cases/9790540

## Case

- **Full name:** JOHNNIE MILLS, Petitioner, v. THE SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO, Respondent; THE PEOPLE, Real Party in Interest
- **Court:** California Supreme Court
- **Decided:** December 11, 1986
- **Citations:** 42 Cal. 3d 951; 232 Cal. Rptr. 141; 728 P.2d 211; 1986 Cal. LEXIS 296
- **Precedential status:** Published
- **Opinion:** Concurring in part by Reynoso
- **Judges:** Mosk, Panelli, Reynoso
- **Cited by:** 25 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Superseded — as noted by a later court.
- Negative treatments: 1
- Distinguished by: 1
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9790540

## Opinion text

REYNOSO, J., Concurring and Dissenting.
I concur fully in the majority’s holding that Penal Code 1 section 872, subdivision (b) (hereinafter section 872(b)) violates the due process clause of the state Constitution (art. I, § 15) because it impermissibly burdens defendant’s right of cross-examination and lightens the prosecution’s task of establishing probable cause at the preliminary hearing.
I respectfully dissent, however, from the majority’s disposition of the case and application of a harmless error test in this context. 2 The majority conclude that writ relief is unavailable since there was sufficient evidence apart from the challenged affidavit to support a probable cause finding. (Ante, pp. 955, 961-962.) In my view, because defendant was denied a substantial right at the preliminary hearing, dismissal is warranted, regardless of the sufficiency of the evidence.
Section 995 provides that upon defendant’s motion, “the . . . information shall be set aside” if it appears “the defendant had not been legally committed by a magistrate.” (Italics added.) 3 As this court long ago reiterated in Jennings v. Superior Court (1967) 66 Cal.2d 867 , at page 874 [ 59 Cal.Rptr. 440 , 428 P.2d 304 ]: ‘““The phrase ‘legally committed,’ . . . refers to the examination of the case and the holding of defendant to answer . . .” [Citation.] An information, of course, will not be set aside merely because there has been some irregularity or minor error in procedure in the preliminary examination. [Citation.] But where it appears that, during the course of the preliminary examination, the defendant has been denied a substantial right, the commitment is unlawful within the meaning of section *965 995, and it must be set aside upon timely motion. [Citations.]’” (Quoting People v. Elliot (1960) 54 Cal.2d 498, 502-503 [ 6 Cal.Rptr. 753 , 354 P.2d 225 ], overruled on another point in People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529 [ 165 Cal.Rptr. 851 , 612 P.2d 941 ], italics added in Jennings, supra.)
*964 44
“(2) If it is an information:
“(A) That before the filing thereof the defendant had not been legally committed by a magistrate.
“(B) That the defendant had been committed without reasonable or probable cause.”
*965 Thus an illegal commitment or denial of a substantial right has been found and dismissal warranted where defendant was denied his right of counsel (§ 859) at the preliminary examination. (People v. Napthaly (1895) 105 Cal. 641, 644-645 [ 39 P. 29 ].) Similarly, dismissal was ordered where the examination was not completed in “one session” as required by section 861. (People v. Bucher (1959) 175 Cal.App.2d 343, 347 [ 346 P.2d 202 ].) Finally, the result is no different where defendant was denied his right to present and cross-examine witnesses (§§ 865, 866) and to present an affirmative defense. (Jennings v. Superior Court, supra, 66 Cal.2d 867, 879-880 ; see and cf. People v. Pompa-Ortiz, supra, 27 Cal.3d 519, 523 .)
Contrary to the majority’s implication, a pretrial showing of denial of a substantial right is not subject to a harmless-error test. As this court recently reiterated in People v. Pompa-Ortiz, supra, 27 Cal.3d at page 523 : “It is settled that 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. [Citations.]” We also made it unmistakably clear that while nonjurisdictional defects in the preliminary examination raised in postconviction appeals would henceforth warrant reversal only upon a showing of denial of a fair trial, pretrial challenges of irregularities require no showing of prejudice. (Id., at p. 529.) As we explained, “At that time, by application for extraordinary writ, the matter can be expeditiously returned to the magistrate for proceedings free of the charged defects. We follow this approach in other contexts. In People v. Wilson (1963) 60 Cal.2d 139 [ 32 Cal.Rptr. 44 , 383 P.2d 452 ], for example, we held that denial of defendant’s right to trial within a prescribed statutory time period was not reversible error on appeal in the absence of a showing of prejudice. If the issue is raised before trial, however, prejudice is presumed and the information is dismissed. [Citations.]” (Ibid., italics added; accord, People v. Johnson (1980) 26 Cal.3d 557, 574-575 [ 162 Cal.Rptr. 431 , 606 P.2d 738 ] [reaffirming Wilson, supra.].) 4
*966 The majority here conclude that requiring defendant to make reasonable efforts to locate the declarant (usually the accuser) contravenes due process, and that the magistrate erred in admitting the hearsay affidavit at defendant’s preliminary hearing. In light of the due process concerns, it seems beyond dispute that the erroneous admission of evidence amounted to denial of a substantial right: defendant’s right to examine and cross-examine witnesses under sections 865 and 866. In Jennings we characterized these statutes as “. . . declaratory of fundamental procedural rights; they are derived from our earliest criminal legislation (Stats. 1851, ch. 29, §§ 153, 159) and have remained unchanged since the codification of the Penal Code in 1872. They were among the statutes relied upon by the United States Supreme Court in the landmark decision of Hurtado v. California (1884) 110 U.S. 516, 538 [ 28 L.Ed. 232, 239 , 4 S.Ct. 111 ], holding that the proceeding by preliminary examination, commitment, and information, ‘carefully considers and guards the substantial interest of the prisoner’ and thus constitutes due process of law. The right to present and cross-examine witnesses is, of course, as essential today as it was in 1884. [Citations.]” (Jennings v. Superior Court, supra, 66 Cal.2d at p. 875 .)
When it comes to finding the affidavit procedure unconstitutional, the majority have no trouble recognizing the importance of defendant’s right to cross-examine witnesses at the preliminary examination in general, and in auto theft cases in particular. (Ante, pp. 957, 960.) Nonetheless, the majority find the error harmless, on grounds “there remained ample independently sufficient evidence apart from the affidavit to support the ruling holding the defendant to answer for auto burglary. The eyewitness testimony of the officer firmly established probable cause.” (Id., ante, p. 961.)
The majority cite Rogers v. Superior Court (1955) 46 Cal.2d 3, 7 [ 291 P.2d 929 ], for the rule that “a writ will not lie to review a ruling of the magistrate on evidence at the preliminary hearing unless the ‘commitment is based entirely on incompetent evidence,’” and point out that Jennings adhered to that rule. (Majority opn., ante, p. 962.) Jennings did reaffirm that rule. ( 66 Cal.2d at p. 878 .) The court, however, carefully drew a *967 distinction between those cases in which cross-examination was curtailed on a critical issue and defendant was prevented from presenting an affirmative defense, and those cases in which an interference with the right of cross-examination was minimal and the information sought inessential. (Id., pp. 878-879, citing Priestly v. Superior Court (1958) 50 Cal.2d 812 [ 330 P.2d 39 ] and Mitchell v. Superior Court (1958) 50 Cal.2d 827 [ 330 P.2d 48 ].) The Jennings court also disavowed the overbroad suggestion in an earlier case that “‘If the right of cross-examination is not generally denied, a showing of probable cause will support the legality of the commitment. . . ( 66 Cal.2d at p. 879, fn. 4 , quoting People v. Malloy (1962) 199 Cal.App.2d 219, 238 [ 18 Cal.Rptr. 545 ].) Thus, Jennings made clear that when a restriction on cross-examination arises to the level of denial of a substantial right, “the resulting illegal commitment may be reached by way of prohibition.” (Id., at p. 880.) 5
The majority apply the Rogers rule too rigidly. Defendant’s motion to set aside the information was based on an illegal commitment rather than a lack of probable cause. By equating the presence of “. . . ‘competent evidence to justify committing defendants’” with a lack of prejudice or denial of a substantial right, the majority foreclose section 995 relief based solely on an illegal commitment. The majority’s resolution is untenable and inconsistent with their holding that section 872(b) is unconstitutional. In light of this holding and longstanding precedent, particularly our unequivocal language in Pompa-Ortiz (27 Cal.3d at pp. 523, 529) and the seminal Jennings case (66 Cal.2d at pp. 880-881), it seems we have no choice but to presume prejudice from the denial of this substantial right, and to order dismissal of the information.
If, on the other hand, we are invalidating section 872(b) but deeming use of the affidavit procedure insubstantial in this particular case, we should make this clear, so as not to diverge from longstanding and sound authority. In my view, having found the statutory procedure does not comport with due process, we have also necessarily found that this defendant was denied *968 a substantial right. His commitment, being illegal, cannot stand—regardless of the other, properly admitted evidence before the magistrate. 6
I would issue the writ of prohibition barring respondent court from proceeding on the information. 7
Bird, C. J., and Broussard, J., concurred.
The petition of real party in interest for a rehearing was denied March 5, 1987.
Unless otherwise specified, all statutory references are to the Penal Code.
To avoid confusion, I would point out that by virtue of this concurring and dissenting opinion, I join the lead opinion—and provide the crucial fourth vote—in declaring section 872(b) unconstitutional. By the same token, I dissent from the lead opinion’s disposition of the case and conclusion that the motion to dismiss the information was properly denied. Justice Panelli, in his concurring and dissenting opinion joined by Justices Grodin and Lucas, agrees that the motion to dismiss was properly denied. (See conc, and dis. opn. by Panelli, J., ante, p. 962.) Thus there is a clear majority vote for the disposition of this matter. For the sake of simplicity, I will refer to the lead opinion as the majority.
Section 995, subdivision (a) states in relevant part that: “. . . the . . . information shall be set aside by the court in which the defendant is arraigned, upon his or her motion, in either of the following cases:
Pompa-Ortiz overturned the overbroad Elliot rule, “that if the defendant has not been ‘legally committed’ and the trial court nonetheless erroneously denies the motion to set aside the information and permits the action to proceed to judgment, the resulting conviction must be reversed.” ( 27 Cal.3d at p. 527 .) We decided that henceforth irregularities in the examination procedures not “jurisdictional in the fundamental sense” would be reviewed under the appropriate standard of prejudicial error. (Id., at p. 529.) In doing so, we apparently *966 left intact the rule of per se prejudice for pretrial challenges of commitment procedures.
The theory behind the per-se rule, as stated in Elliot ( 54 Cal.2d at p. 503 ) and quoted in Pompa-Ortiz (at p. 528) is as follows: “ ‘where the accused is not legally committed within the meaning of section 995 ... the commitment is voidable. Under proper objection, the superior court has no jurisdiction to proceed. It is the same as if no preliminary examination at all had been held, and is analogous to the situation where no evidence to connect the accused with the crime is introduced at the preliminary examination. In such event, of course, the information must be quashed. [Citation.]’”
Regardless of the viability of this theory, the point is that once defendant has shown denial of a substantial right in a timely filed motion to dismiss, he is entitled to dismissal of charges. (Jennings v. Superior Court, supra, 66 Cal.2d 867, 880-881 .)
In Jennings , this court explained that, “‘Not [in] every instance in which a cross-examiner’s question is disallowed will defendant’s right to a fair hearing be abridged, since the matter may be too unimportant [citation], or there may be no prejudice [citation], or the question may involve issues which can be brought up at a more appropriate time [citation]. However, where the subject of cross-examination concerns the matter at issue there can be no doubt that the refusal to permit such question results in a denial of a fair hearing. [Citations.]”’ ( 66 Cal.2d, at p. 879 , citing conc. opn. of Carter, J., in Priestly v. Superior Court, supra, 50 Cal.2d 812, at pp. 822-823 , italics added.) Thus in Jennings, the magistrate’s refusal to allow defendant a continuance to call a material witness in order to show the arrest for narcotics possession was a “setup” amounted to denial of a substantial right and an illegal commitment. Defendant was entitled to a peremptory writ of prohibition upon a timely motion to dismiss and writ petition, without any further showing. (66 Cal.2d at pp. 879-881.)
It may be that the majority view the wholesale denial of cross-examination of this minor witness—the vehicle owner—as inconsequential or nonprejudicial. I submit that such a position is inconsistent with, and undercuts, the holding in this case, that due process, at least under our state Constitution, is offended by use of the affidavit procedure. Under Jennings , the affidavit “concerns the matter at issue” and use thereof “resulted] in a denial of a fair hearing.” ( 66 Cal.2d, at p. 879 .)
Charges may of course be refiled, consistent with sections 999 and 1387.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9790540. Public record. Not legal advice.