Reset A A Font size: Print

District Court of Appeal, First District, Division 1, California.

Martha MITCHELL and Milton Flynn, Petitioners, v. The SUPERIOR COURT of the State of California, IN AND FOR CITY AND COUNTY OF SAN FRANCISCO, Respondent.*

Civ. 17638.

Decided: July 10, 1957

Arthur D. Klang, San Francisco, for petitioners. Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., William M. Bennett, Deputy Atty. Gen., for respondent.

When arraigned upon informations charging them with violations of sections 11500 and 11557 of the Health and Safety Code (possession of heroin, two sales of heroin, and maintenance of a place for the sale of narcotics) the defendants moved to set aside the informations upon the ground that before the filing thereof the defendants had not been legally committed by a magistrate (Pen.Code, §§ 995–996), assigning violation of their constitutional rights to due process as the basis of the illegality. Upon denial of the motion defendants petitioned this court for a writ of prohibition restraining further proceedings upon any of the informations.

They do not claim that there is a lack of competent evidence to support the magistrate's findings that it appears to him that the offenses charged have been committed and that there is sufficient cause to believe the defendants guilty thereof. See Penal Code, § 872.

They predicate the asserted illegality of the commitment upon the refusal of the magistrate, during the preliminary examination, to allow them to ask the prosecuting witnesses the names of or other means of identifying two informant-participants.

At the preliminary examination, police officers testified to being informed by two ‘reliable informers' that defendants were selling narcotics in their apartment. After stripping and searching the informants and removing all articles in their clothing, the officers gave each $20 in bills, the serial numbers of which were recorded, and escorted the informants to defendants' apartment. The bills were dusted with fluorescent powder invisible to the naked eye. Separately the informants entered the apartment and in a few minutes returned. They were then searched. The bills were gone and each had a bindle of heroin. The officers then waited in front of the apartment door for approximately 10 to 15 minutes. It was opened by defendant Mitchell, who was immediately placed under arrest. She dropped a package from her hand to the floor. It contained heroin. In the bedroom they arrested defendant Flynn. Four bindles were found on his person. Behind one of the dresser drawers they found the bills given to the first informant. They did not find those given the second informant. With a black box they observed fluorescent powder on both hands of Mitchell and on the fingertips and shirt of Flynn. On cross-examination the officers refused to divulge the names of the informant-participants.1

The petitioning defendants have made no showing that they lack the information thus sought. Indeed, they insist that there is no requirement that they make such a showing. The judge who presided at the preliminary said to defense counsel: ‘You haven't shown the Court, excepting by your own statement, that it would be useful.’ Counsel replied: ‘Now, these cases hold that it is not necessary to make a specific showing. That, automatically, is useful to the defendant. In other words, the mere fact that the defendant pleads ‘not guilty,’ and denies that these sales took place, then it automatically becomes useful, and the cases so hold. We don't have to get up here and make a specific showing as long as we have denied that the sales took place.'

At no time did counsel say, for example, that the name or the address of either of the informant-participants was unknown to the petitioners. No does counsel now make any such claim or representation. The very petition is silent on the subject, except for conclusionary statements that petitioners were ‘denied an opportunity to defend themselves' and ‘denied effective aid of counsel'2 And counsel takes no position here different from that taken at the preliminary hearing. Moreover, the record herein does not disclose what showing the petitioners or the state made at the hearing in the superior court. All we know in that regard is that petitioners moved to set the information aside upon the grounds stated and that the superior court denied the motion.

We entertain no doubt of the right of a defendant, at a preliminary examination, to confront the prosecution's witnesses and cross-examine them. Pen.Code, § 865.

The only basis urged by the prosecutor for his objection to the questions asked at the preliminary was the policy of nondisclosure of ‘communications made’ to a public officer ‘in official confidence, when the public interest would suffer by the disclosure.’ Code Civ.Proc. § 1881, subd. 5. That policy well might here prevail if mere ‘informants' were involved. But these persons were more than that. They did not merely point their fingers at the defendants, leaving to the officers the task of finding evidence of crime. They participated with the defendants in effecting the very sales which the informations later filed charge the defendants of having made in violation of law; alleged sales concerning which only they and the defendants could testify as eye-witnesses.

This policy of nondisclosure does not obtain in such a case. It was held in People v. Lawrence, 149 Cal.App.2d 435, 308 P.2d 821, 830, that upon the trial of a case this policy yields to the right of a defendant to defend himself: ‘To deny the defendant the right to examine an officer regarding the name of or to ask other material questions concerning an informant-participant would be to suppress an essential element of the res gestae. The crime is committed when the sale is made and not when the informant delivers the contraband to the officers and tells them about the sale.’

The reasoning by which the court in the Lawrence case applied this principle to a hearing on voir dire held out of the presence of the jury, is persuasive of its applicability to the preliminary examination: ‘Although the question of the guilt of the defendant is not before the court, nevertheless, the defendant has the same right to present his defense at the hearing to determine the reasonableness of an arrest or search as he does on the question of his guilt. The fact that the hearing is held before the court in the absence of the jury makes it no less a criminal proceeding. Due process applies and all the rights the defendant may have at the trial proper apply with equal force and dignity to the proceedings before the court sitting in the absence of a jury.’ 149 Cal.App.2d at page 451, 308 P.2d at page 381.

It happens, therefore, that the denial of the information in this case was erroneous. That presents two questions: Is such error reviewable? Is it reviewable and are its legal consequences determinable in this proceeding?

The state contends (1) that judicial review of the conduct of a preliminary hearing is limited to the question whether there is competent evidence of reasonable and probable cause and does not comprehend the correctness of rulings on the admission of evidence, and (2) prohibition is not an available remedy.

We are not prepared to agree with the state's first contention. The statute separately expresses two different reasons for setting an information aside: (1) that ‘defendant had not been legally committed by a magistrate’ and (2) that ‘defendant had been committed without reasonable or probable cause.’ Pen.Code, § 995.

It happens that the greater number of reported cases have involved the second ground only, the question of reasonable and probable cause. In such cases, it is held that there is no ‘full scale review of the rulings' of the magistrate and that ‘the scope of review is simply to determine whether the magistrate has held the defendant to answer without reasonable or probable cause to believe a public offense has been committed with which the defendant is connected, and not whether the magistrate erred on questions of admissibility of evidence,’ subject to the qualification that ‘[a] defendant has been held to answer without reasonable or probable cause if his commitment is based entirely on incompetent evidence, and for the following reasons the peremptory writ will issue to prohibit further proceedings against him.

‘A court has no jurisdiction to proceed with the trial of an offense without a valid indictment or information. * * * Prohibition is the proper remedy to prevent threatened action in excess of jurisdiction * * *, and it is an appropriate means to test the right of the People to proceed with a prosecution when the validity of an indictment or information is challenged on the ground that the defendant has been indicted or committed without reasonable or probable cause.’ Rogers v. Superior Court, 46 Cal.2d 3, 7, 291 P.2d 939, 931; emphasis added.

That, we think, was not intended as a holding that the absence of reasonable or probable cause (due to the lack of competent evidence) can be the only basis for setting an information aside. In such cases as the Rogers case the reviewing courts have been concerned only with the question of ‘reasonable or probable cause.’ It would not be a fair inference to say that in their discussions of that question they intended to and did rule out all other possible imperfections in the preliminary examination procedure as possible bases for setting an information aside.

Few cases thus far in California have involved the latter question. Among them are cases which hold that depriving a defendant of his constitutional right to the aid of counsel taints a magistrate's commitment with illegality. The following have come to our attention: People v. Naphaly, 105 Cal. 641, 644, 39 P. 29, reversing judgment of conviction and an order which denied a motion to set the information aside; People v. Salas, 80 Cal.App. 318, 250 P. 526, affirming trial court's order setting the information aside because of magistrate's failure to inform the defendant of his right to aid of counsel, citing sections 8 and 13 of Art. I, Constitution, and sections 858 and 859, Penal Code; People v. Miller, 123 Cal.App. 499, 11 P.2d 884, same action as in the Salas case, for the same reason; People v. Williams, 124 Cal.App.2d 32, 268 P.2d 156, same action as in the Salas case, for the same reason. Each of these was a case that came to the reviewing court upon appeal from a judgment or order of the trial court. Each was predicated upon a violation of a fundamental right of the defendant, the right to the aid of counsel. Each is persuasive of the view that violation of the fundamental right to confront the witnesses against him and to cross-examine a prosecution witness on a fundamental aspect of the case, is subject to review upon appeal from the final judgment or order of the superior court, if the defendant has preserved his right to a review by timely presentation of his motion as authorized by sections 995 and 996 of the Penal Code.

It does not necessarily follow that the writ of prohibition is available as a remedy in such a case. ‘Experience has shown that most of the meritorious defenses are sustained and most of the unsubstantial constitutional or other objections are weeded out at the proper time on the proper showing during the trial or on appeal. These remedies are therefore considered adequate in the usual situations. If this were not so, then whenever jurisdiction is challenged prohibition would lie and the trial of the case would be interrupted until the reviewing court passed upon the intermediate question and appellate courts in many cases would be converted into nisi prius courts.’ Rescue Army v. Municipal Court, 28 Cal.2d 460, 466, 171 P.2d 8, 12.

Where, as in the instant case, the defendants failed and refused to make a showing of need for the information which answers to their questions would have given them, the requested writ should not issue. The normal course of trial and appeal should be allowed to take its course. We do not undertake to say under what circumstances, if any, a writ of prohibition should issue (despite the presence of competent evidence of reasonable and probable cause) when a defendant's fundamental rights have been violated. We do hold that this is not such a case.

The alternative writ is discharged and the application for a peremptory writ of prohibition is denied.


1.  Defendants' counsel asked such questions as these: (1) I want to know the name of the man who gave you the information that narcotics could be obtained at this place from these defendants. Objection: It calls for confidential and privileged information. Sustained. (2) Will you give me the name of the man to whom you gave the marked money in the first instance and who came out and surrendered a package to you? Objection: The same. Defense counsel's response: This is not an informer, now. We are talking about the person who participated. Sustained. (3) Is that person Joseph Fonteno? Objection: It tends to disclose his identity. Sustained. (4) On this second occasion, what is the name of the man you searched at Page and Masonic at 11:00 o'clock in the evening? Objection: It tends to disclose the confidential informant and privileged information. Sustained. (5) Where does he live? Objection: The same. Sustained. (6) In his name Joseph Fonteno? Same objection and ruling. (7) Does he live at 1226 Masonic Street (the building in which defendants' apartment was situated)? Same objection and ruling.

2.  Incidentally, these allegations of the petition are denied by the state in the return it has filed herein.

FRED B. WOOD, Justice.

PERTERS, P. J., and BRAY, J., concur.