# Dustin v. Superior Court

> California Court of Appeal · August 8, 2002 · 122 Cal. Rptr. 2d 176

URL: https://www.frixlaw.com/law-library/cases/9862597

## Case

- **Full name:** TERRY DALE DUSTIN, Petitioner, v. THE SUPERIOR COURT OF STANISLAUS COUNTY, Respondent; THE PEOPLE, Real Party in Interest
- **Court:** California Court of Appeal
- **Decided:** August 8, 2002
- **Citations:** 122 Cal. Rptr. 2d 176; 99 Cal. App. 4th 1311
- **Precedential status:** Published
- **Opinion:** Dissent by Ardaiz
- **Judges:** Wisemlan
- **Cited by:** 14 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9862597

## Opinion text

*1329 ARDAIZ, P. J.
I dissent.
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 causes. (See People v. Superior Court (Moucha ourab) (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 section 190.9, subdivision (a)(1), that “[i]n any case in which a death sentence may be imposed, all proceedings . . . shall be conducted on the record with a court reporter present.” Unlike my colleagues, I cannot so easily dismiss the People’s argument that this matter is not a “case” within the meaning of the statute.
With exceptions not relevant here, “[e]very public offense must be prosecuted by indictment or information . . . .” (§ 682.) “An indictment is an accusation in writing, presented by the grand jury to a competent court, *1330 charging a person with a public offense.” (§ 889.) Thus, it, like an information, is an “ ‘accusatory pleading’ ” (§691, subd. (c)), and it is the first pleading filed on the part of the People in superior court in a felony case (§ 949). It is the indictment which initiates the prosecution (see People v. Sirhan (1972) 7 Cal.3d 710, 746-747 [ 102 Cal.Rptr. 385 , 497 P.2d 1121 ], overruled on other grounds in Hawkins v. Superior Court (1978) 22 Cal.3d 584, 593, fn. 7 [ 150 Cal.Rptr. 435 , 586 P.2d 916 ]); prior to its filing, there is no case. There is, at most, simply an investigation which may or may not already have resulted in the defendant’s arrest and which may not ultimately result in an indictment—a charge—being brought. (See Cummiskey v. Superior Court (1992) 3 Cal.4th 1018, 1026 [ 13 Cal.Rptr.2d 551 , 839 P.2d 1059 ] [grand jury is part of charging, not adjudicative, process]; People v. Brown (1999) 75 Cal.App.4th 916, 931-932 [ 89 Cal.Rptr.2d 589 ] [grand jury process is investigatory]; § 924 [grand juror not to disclose fact of indictment until defendant’s arrest].) It would be unreasonable to interpret section 190.9, subdivision (a) as requiring the reporting and transcription of an entire investigation.
The fact that subdivision (a)(1) of section 190.9 refers to the reporting and transcription of proceedings held prior to a preliminary hearing does not affect its applicability to prosecutions initiated by way of grand jury indictment. An indictment charging a felony is filed directly in superior court. (People v. Martinez (2000) 22 Cal.4th 750, 758 [ 94 Cal.Rptr.2d 381 , 996 P.2d 32 ].) It does not contain allegations made by the prosecutor, but rather by the grand jury, albeit with the prosecutor’s assistance. (People v. Superior Court (Gevorgyan) (2001) 91 Cal.App.4th 602, 612 [ 110 Cal.Rptr.2d 668 ].) The procedure involving prosecution by means of information is significantly different. An information “shall be in the name of the people of the State of California and subscribed by the district attorney.” (§ 739; People v. Superior Court (Gevorgyan), supra, 91 Cal.App.4th at p. 612 .) Before an information can even be filed in superior court, there must be a preliminary hearing. (See § 860.) The entire process is initiated by a felony complaint (§ 806), which is “a written accusatory pleading subscribed under oath and filed with a magistrate.” (People v. Martinez, supra, 22 Cal.4th at p. 758 .) Thus, in causes prosecuted by information, a pre-information accusatory pleading is presented and adversarial proceedings undertaken before the information can be filed.
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 *1331 are substantial. It stands to reason, then, that the rights and protections afforded the accused party in the two proceedings are also different. For example, since the purpose of the right to counsel is “to protect the accused during trial-type confrontations with the prosecutor,” that right attaches “ ‘at or after the initiation of adversary judicial criminal proceedings—whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.’ ” (United States v. Gouveia (1984) 467 U.S. 180, 188, 190 [ 104 S.Ct. 2292, 2297, 2298 , 81 L.Ed.2d 146 ].) Thus, an accused has the right to counsel at a preliminary hearing (id. at p. 188 [104 S.Ct. at pp. 2297-2298]; People v. Slayton (2001) 26 Cal.4th 1076, 1079 [ 112 Cal.Rptr.2d 561 , 32 P.3d 1073 ]; People v. Duncan (2000) 78 Cal.App.4th 765, 773 [ 93 Cal.Rptr.2d 173 ]), but does not enjoy such a right in grand jury proceedings (People v. Brown, supra, 75 Cal.App.4th at p. 932 ). In addition, at a preliminary hearing the accused has the right personally to appear, to cross-examine witnesses, to present exculpatory evidence, and to exclude illegally obtained evidence. (Press-Enterprise Co. v. Superior Court (1986) 478 U.S. 1, 12 [ 106 S.Ct. 2735, 2742 , 92 L.Ed.2d 1 ]; Jennings v. Superior Court (1967) 66 Cal.2d 867, 871 [ 59 Cal.Rptr. 440 , 428 P.2d 304 ]; People v. Duncan, supra, 78 Cal.App.4th at p. 775; Nienhouse v. Superior Court, supra, 42 Cal.App.4th at p. 91 .) Such rights are not available to the accused in a grand jury proceeding, although the prosecutor is required to inform the grand jury of any exculpatory evidence of which he or she is aware. (E.g., §§ 939.7, 939.71; People v. Dupree (1957) 156 Cal.App.2d 60, 64-65 [ 319 P.2d 39 ]; see United States v. Williams (1992) 504 U.S. 36, 49-53 [ 112 S.Ct. 1735, 1743-1745 , 118 L.Ed.2d 352 ].)
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, section 190.9 refers to adjudicatory proceedings.
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 puipose 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 *1332 the indictment in this case. Assuming an accused’s access to a transcription of testimonial portions of a grand jury proceeding implicates the right to due process (since he or she has a due process right not to be indicted absent probable cause), any right to a transcription of other portions of the proceeding is not constitutionally based and, hence, is subject to harmless-error analysis under People v. Watson (1956) 46 Cal.2d 818, 836 [ 299 P.2d 243 ].
Even where section 190.9 is involved, “[n]o presumption of prejudice arises from the absence of materials from the appellate record [citation], and defendant bears the burden of demonstrating that the record is inadequate to permit meaningful appellate review [citations].” (People v. Samayoa (1997) 15 Cal.4th 795, 820 [ 64 Cal.Rptr.2d 400 , 938 P.2d 2 ].) Samayoa involved a posttrial appeal, not a pretrial challenge. The majority analogize the situation in the present case—which does involve a pretrial challenge—to violation of a substantial right at a preliminary hearing, which entitles the defendant to dismissal of the information on timely motion. (People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 523 [ 165 Cal.Rptr. 851 , 612 P.2d 941 ] (Pompa-Ortiz).)
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, “[substantial 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.]” (Pe ople 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 (§§ 938, 938.1) and constitutional implications, denial of a transcript of a portion of grand jury testimony would, presumably, constitute denial of a substantial right. In my view, the same cannot be said about denial of a transcription of other portions of the proceedings. Accordingly, the Pompa-Ortiz rule does not apply and prejudice must be shown in order to obtain relief, even in case of a pretrial challenge.
*1333 Defendant has not established prejudice as he has not shown the record is inadequate to permit meaningful review. (See People v. Samayoa, supra, 15 Cal.4th at p. 820 .) The record is sufficient to permit review of the grand jury’s probable cause determination and, in my view, of that body’s independence and impartiality. Although I can envision situations in which an accused might be prejudiced by the unavailability of a transcript of nontestimonial portions of the proceeding, this is not such a case. Where a prosecutor makes a straightforward presentation on the record, I am not willing to assume—especially where, as here, the evidence overwhelmingly establishes probable cause—that he or she waited until the court reporter was absent and then did something to compromise the grand jury’s independence or impartiality.
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.
All statutory references are to the Penal Code.
In People v. Jones (1990) 51 Cal.Sd 294, 318 [ 270 Cal.Rptr. 611 , 792 P.2d 643 ], the California Supreme Court stated that in cases prosecuted by indictment, an indicted defendant is entitled to a complete transcript of the proceedings. In making this statement, however, the court cited section 938.1, which in turn implicitly refers to section 938. By its terms, section 938 provides for transcription of the “testimony” given before a grand jury. (§ 938, subds. (a), (b).) As the issue in Jones had nothing to do with the extent of transcription required in grand jury proceedings, I do not read that case as authority for the proposition that a complete transcription of nontestimonial portions must be available. Cases are not authority for propositions not considered therein. (People v. Mazurette (2001) 24 Cal.4th 789, 797 [ 102 Cal.Rptr.2d 555 , 14 P.3d 227 ]; People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 198 [ 96 Cal.Rptr.2d 463 , 999 P.2d 686 ].)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9862597. Public record. Not legal advice.