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Court of Appeal, Second District, Division 6, California.

PEOPLE of the State of California, Petitioner, v. The SUPERIOR COURT of the STATE of California for the County of Ventura, Respondent. David Scott CROTHER, Real Party in Interest.

Civ. No. B056702.

Decided: July 19, 1991

Michael D. Bradbury, Dist. Atty., County of Ventura, State of Cal. and Vincent J. O'Neill, Jr., Chief Deputy Dist. Atty., for petitioner. No appearance for respondent. Roger M. Sanger, for real party in interest.


On June 5, 1990, the voters of the State of California added article I, section 14.1 to the California Constitution as part of the Proposition 115 initiative known as the “Crime Victims Justice Reform Act.”   It provides:  “If a felony is prosecuted by indictment, there shall be no postindictment preliminary hearing.”   We hold that article I, section 14.1, (1) has the effect of overruling Hawkins v. Superior Court (1978) 22 Cal.3d 584, 150 Cal.Rptr. 435, 586 P.2d 916 (Hawkins ) which provided for a postindictment preliminary hearing, (2) does not violate the prohibition against ex post facto laws and applies retrospectively to crimes committed before June 6, 1990, and (3) does not deprive the accused of equal protection of the law.   We therefore grant the People's request for a peremptory writ of mandate.

On January 10, 1991, the Ventura County Grand Jury, after hearing the testimony of 16 witnesses, returned a 15–count felonious assault indictment against David Crother, real party.

In pertinent part, the indictment alleges:  “David Scott Crother, age 45 (hereafter Crother), and an adult woman (hereafter victim) whose name has been withheld from this document to protect her privacy, engaged in a consensual sexual relationship which began in January of 1988 and ended in August of 1989.   On an unknown date prior to September of 1988, Crother tested positive for antibodies to the Human Immunodeficiency Virus (hereafter HIV).   He was then informed that he had been infected with HIV, that HIV causes the frequently fatal Acquired Immune Deficiency Syndrome (hereafter AIDS), and that he could transmit the virus to others by means of his body fluids, especially blood and semen.   He was specifically counseled not to engage in penile sexual activity unprotected by a condom and a spermicide.   Crother nonetheless repeatedly engaged in unprotected vaginal intercourse with the victim, including ejaculation inside her body.”   The indictment also alleges that as a result of this relationship, the victim and her child born in 1990 are infected with HIV.

On March 1, 1991, respondent court granted real party's motion for a postindictment preliminary hearing.   Relying on the “independent state ground” theory (see e.g., People v. Brisendine (1975) 13 Cal.3d 528, 548–552, 119 Cal.Rptr. 315, 531 P.2d 1099) and the Proposition 8 prospectivity holding of People v. Smith (1983) 34 Cal.3d 251, 193 Cal.Rptr. 692, 667 P.2d 149, respondent court ruled that Proposition 115 was not applicable to crimes committed prior to June 6, 1990.

The People sought relief by way of writ which we summarily denied on March 13, 1991.   On April 1, 1991, our Supreme Court filed Tapia v. Superior Court (1991) 53 Cal.3d 282, 279 Cal.Rptr. 592, 807 P.2d 434 (Tapia ), and held that certain aspects of Proposition 115 could be applied retrospectively.   (Ibid., at pp. 299–301, 279 Cal.Rptr. 592, 807 P.2d 434.)   The Supreme Court granted review in the instant case, ordered us to issue an alternative writ, and in essence, reconsider in light of Tapia.   We have done so.

“The United States Supreme Court has greatly simplified ex post facto law since Smith [People v. Smith, supra, 34 Cal.3d 251, 193 Cal.Rptr. 692, 667 P.2d 149].”  (Tapia, supra, 53 Cal.3d at p. 293, 279 Cal.Rptr. 592, 807 P.2d 434.)  “Under that exclusive formulation, ‘ “any statute [1] which punishes as a crime an act previously committed, which was innocent when done;  [2] which makes more burdensome the punishment for a crime, after its commission, or [3] which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto.” ’  [Fn. omitted.]”  (Id., at p. 294, 279 Cal.Rptr. 592, 807 P.2d 434, quoting Collins v. Youngblood (1990) 497 U.S. 37, ––––, 110 S.Ct. 2715, 2719, 111 L.Ed.2d 30, 39.)   Both Supreme Courts have jettisoned the traditional “substantial protection,” analysis, i.e., whether a law is “substantive” or “procedural.”  (Id., 53 Cal.3d at pp. 294–296, 279 Cal.Rptr. 592, 807 P.2d 434;  see also People v. Smith, supra, 34 Cal.3d at p. 260, 193 Cal.Rptr. 692, 667 P.2d 149;  Witkin, Summary of Cal.Law (9th ed.) Vol. 7, §§ 486, 492;  pp. 675–676, 682–683.)

 Article I, section 14.1 of the California Constitution, when measured against the “Tapia”/“Collins” criteria, does not violate the ex post facto clauses of the federal and state constitutions.  (Ibid., 53 Cal.3d at p. 299, 279 Cal.Rptr. 592, 807 P.2d 434;  U.S. Const., art. I, § 10;  Cal. Const., art. I, § 9, see also People v. Carrasco (1988) 202 Cal.App.3d 1078, 1081–1082, 249 Cal.Rptr. 154.)   In dicta, our Supreme Court has said so:  “Other provisions of Proposition 115 address the conduct of trials rather than the definition of, punishment for, or defenses to crimes.   These provisions include section 2 (adding Cal. Const., art. I, § 14.1), which eliminates postindictment preliminary hearings․  Accordingly, the provisions enumerated above [one of which is art. I, § 14.1] may be applied to pending cases regardless of when the changed offense is alleged to have occurred.”  (Tapia, supra, 53 Cal.3d at pp. 299–300, 279 Cal.Rptr. 592, 807 P.2d 434.)   We adopt the Supreme Court's dicta as our holding.

Relying on Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937, real party claims that this court is “bound” by Hawkins which held:  “We conclude that the denial of a postindictment preliminary hearing deprived defendants herein of equal protection of the laws guaranteed by article I, section 7, of the California Constitution.  [Fn. Omitted.]”  (Hawkins, supra, 22 Cal.3d at p. 593, 150 Cal.Rptr. 435, 586 P.2d 916.)

We are confronted with a novel issue of appellate procedure.  (Cf., People v. Bracamonte (1980) 119 Cal.App.3d 644, 655, fn. 7, 174 Cal.Rptr. 191.)  “The decisions of ․ [the California Supreme] court are binding upon and must be followed by all the state courts of California.”  (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455, 20 Cal.Rptr. 321, 369 P.2d 937.)   When reconsidering its own opinions, the Supreme Court has also stated that “ ‘[t]he rule of stare decisis is not so imperative or inflexible as to preclude a departure therefrom in any case, but its application must be determined in each instance by the discretion of the court.   Previous decisions should not be followed to the extent that error may be perpetuated and that wrong may result.’  (County of Los Angeles v. Faus (1957) 48 Cal.2d 672, 679 [312 P.2d 680];  see also People v. Hallner (1954) 43 Cal.2d 715, 720 [277 P.2d 393].)”  (People v. Savala (1981) 116 Cal.App.3d 41, 58, 171 Cal.Rptr. 882.)

 Where, as here, there has been an intervening constitutional amendment designed to overrule the effect of a Supreme Court decision (see Raven v. Deukmejian (1990) 52 Cal.3d 336, 348, 276 Cal.Rptr. 326, 801 P.2d 1077), we believe that an intermediate appellate court is not bound by the target Supreme Court decision.   The rules articulated in Auto Equity Sales Inc. v. Superior Court, supra, 57 Cal.2d 450, 20 Cal.Rptr. 321, 369 P.2d 937, are based on the traditional concept of stare decisis:  “[A]ll tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction.   Otherwise the doctrine of stare decisis makes no sense.”  (Ibid., at p. 455, 20 Cal.Rptr. 321, 369 P.2d 937.)   But for these rules, judicial chaos would result.   No such chaos will result from the strictly limited exception here articulated.  “When the reason for a rule ceases, so should the rule itself.”  (Civ.Code, § 3510.)   We reach the merits of the equal protection claim.

 The People contend that the equal protection argument cannot be sustained relying on general rules of construction, i.e., that the more recent and specific provision governs, and that People v. Valentine (1986) 42 Cal.3d 170, 181, 228 Cal.Rptr. 25, 720 P.2d 913, compels the conclusion that the equal protection argument is “gone.”   The People's theory is meritorious.

In People v. Valentine our Supreme Court held that article I, section 28, added by the voters as Proposition 8 (“ ‘[w]hen a prior felony conviction is an element of any felony offense, it shall be proven to the trier of fact in open court.’),” overruled People v. Hall (1980) 28 Cal.3d 143, 167 Cal.Rptr. 844, 616 P.2d 826.  (Id., 42 Cal.3d at p. 173, 228 Cal.Rptr. 25, 720 P.2d 913.)   Confronted with the claim that such a holding would not be consistent with state due process, the Supreme Court said:  “This clear, recent, and specific command supersedes any previous inconsistent interpretations of our state charter's due process guarantees.  [Citation.]”  (Id., at p. 181, 228 Cal.Rptr. 25, 720 P.2d 913.)

We hold that article I, section 14.1, being clear, recent and specific, supersedes the previous inconsistent interpretation of our state's equal protection guarantee as set forth in Hawkins v. Superior Court, supra, 22 Cal.3d 584, 150 Cal.Rptr. 435, 586 P.2d 916.

Let a writ of mandate issue ordering that respondent court set aside its order granting real party's request for a preliminary hearing, and to issue a new order denying said motion.   The alternative writ, having served its purpose, is discharged.

YEGAN, Associate Justice.

STONE, P.J., and STEVEN, and GILBERT, JJ., concur.

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