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JOHNSON v. PEOPLE BAKER

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Court of Appeal, Third District, California.

Lowell Ray JOHNSON, Petitioner, v. The SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN JOAQUIN, DEPARTMENT NO. 6, Respondent; The PEOPLE of the State of California, By their attorney, Joseph BAKER, District Attorney for the County of San Joaquin, Real Party in Interest.

Civ. 14367.

Decided: May 02, 1974

Michael J. Barkett, Jr., Stockton, for petitioner. Evelle J. Younger, Atty. Gen., by Kevin Corrington, Deputy Atty. Gen., Sacramento, for real party in interest.

On the ground that the district attorney withheld exculpatory evidence in his control when he presented the case to the grand jury, petitioner seeks a writ of prohibition to restrain the superior court from proceeding to trial upon the indictment. Under the facts, the district attorney's action impaired the accused person's due process right to an independent grand jury finding of probable cause and vitiated the indictment. Thus the writ of prohibition will issue.

Petitioner and one Sherman were arrested and charged with conspiracy to sell dangerous drugs and with the sale and transportation of these drugs. Petitioner had indicated his receptiveness to the sale of drugs to two undercover agents. His friend Sherman drove from home in Lodi to a motel in Stockton, where he sold amphetamines to the same two agents. Police had Sherman's house in Lodi under surveillance and had seen defendant park his car outside Sherman's house, converse with Sherman, then follow Sherman as the latter drove to Stockton. Petitioner parked his own car not far from Sherman's automobile, while the latter went into the motel. After the agents ‘made the buy’ from Sherman, they went outside and arrested petitioner. Petitioner had no contraband with him.

A complaint was filed and a preliminary examination held. Petitioner took the stand in his own behalf. He testified, in substance, that he was awaiting sentence on an earlier narcotics charge to which he had pleaded guilty; that a deputy district attorney told him he would recommend a local jail term instead of state prison if he cooperated by providing information on narcotics dealers; that he had entered into a conversation with two men (who, unknown to him, were undercover agents) concerning a drug sale; the deputy district attorney then told him that he would recommend state prison if petitioner ‘couldn't come up with someone;’ that the next day he drove to Sherman's house in Lodi, talked to Sherman, then drove his own car to Stockton and parked near the motel, seeking to get some information which he could then supply the district attorney in the hope of getting a light sentence. He said he had nothing to do with Sherman's sale of narcotics and was sitting in his own car, with no narcotics in his possession, when the officers arrested him.

At the close of the preliminary examination the magistrate dismissed the charges against petitioner ‘due to insufficiency of the evidence.’ The conspiracy charge was dismissed, and Sherman alone was bound over for trial on the sale and transportation charges.

The district attorney then brought the same three charges against petitioner before the grand jury, which heard testimony of the same officers who had testified against the petitioner at the preliminary examination. The district attorney did not reveal petitioner's exculpatory testimony before the committing magistrate. Instead, the district attorney improperly produced testimony of a police witness who said that petitioner, at the order of his attorney, refused to make any statement regarding the transaction. (See People v. Miller, 245 Cal.App.2d 112, 156, 53 Cal.Rptr. 720.) The grand jury indicted petitioner.

I

At the outset we confront a procedural problem. Penal Code section 995 describes statutory grounds for a motion to set aside an indictment.1 After the superior court has denied such a motion for lack of probable cause, the defendant had 15 days within which to file a petition for a writ of prohibition in the reviewing court; the 15-day time limit is jurisdictional. (Pen.Code, § 999a; Bernstein v. Superior Court, 45 Cal.2d 774, 775, 291 P.2d 29; Guerin v. Superior Court, 269 Cal.App.2d 80, 82–83, 75 Cal.Rptr. 923.) The Attorney General contends that the present petition is not timely and may not be considered on its merits.

The indictment was filed September 12, 1973. On October 15 petitioner, through counsel, moved in the superior court to set aside the indictment, partly on the claim that the district attorney had withheld petitioner's exculpatory testimony from the grand jury and partly on the ground that the indictment was not supported by evidence adequate to show probable cause. The court ruled, in effect, that the district attorney's partial presentation of evidence to the grand jury was not an appropriate ground of a motion under Penal Code section 995 and expressly refused to consider that ground. The court passed upon and rejected petitioner's claim of insufficiency of the evidence to support the indictment.

After rejection of his motion to ‘set aside’ the indictment, petitioner then moved to ‘quash’ the indictment, again charging the district attorney with withholding evidence. The court entertained the second motion and on December 4, 1973, entered its order denying the motion. On December 19, 15 days after the latter order, petitioner filed his petition in this court.

The petition for prohibition effectively evokes our jurisdiction. Public offenses triable in the superior court must be prosecuted either by indictment or by information; a superior court has no jurisdiction to proceed with a felony trial unless a valid indictment or information has first been presented. (Cal.Const., art. I, § 8; Pen.Code, § 682.) When a felony prosecution is initiated by a complaint and preliminary hearing before a magistrate, the violation of the defendant's substantial rights at the hearing invalidates the commitment and justifies a writ of prohibition to halt the trial. (Jennings v. Superior Court, 66 Cal.2d 867, 879–880, 59 Cal.Rptr. 440, 428 P.2d 304.) The proceeding before the grand jury is an alternative to the preliminary hearing before the magistrate; both are designed to screen out unfounded charges and to protect the accused against a groundless felony trial. When the grand jury alternative is utilized, the defendant's substantial rights (as we shall observe) are different but nevertheless existent and of fundamental constitutional importance. As in a preliminary hearing before the magistrate, the invasion of substantial rights in the course of a grand jury proceeding invalidates the accusatory pleading, i. e., the indictment. A writ of prohibition is the appropriate remedy to restrain the superior court from violating its jurisdiction by trying a defendant upon an invalid indictment. (Greenberg v. Superior Court, 19 Cal.2d 319, 323, 121 P.2d 713.)

Petitioner's trial court attack on the district attorney's procedure had been labeled as a motion to ‘set aside’ the indictment. The court had refused to consider it in that guise, but had done so when the motion was tagged as one to ‘quash’ the indictment. The difference between a motion to set aside and one to quash an indictment is verbal, not real. Each seeks to annul or invalidate the indictment.

In the superior court, petitioner was charging deprivation of a substantial right, a right consisting of entitlement to a constitutionally conducted grant jury proceeding. That charge was outside the scope of the first ground recognized by Penal Code section 995 (i. e., an indictment ‘found, endorsed, and presented’ in violation of the statutory mode). (See Fitts v. Superior Court, 4 Cal.2d 514, 51 P.2d 66; People v. Colby, 54 Cal. 37; Witkin, cal. Criminal Procedure, § 224.) Nor, at this point, was he asking the court to examine the grand jury transcript with a view to declaring the absence of competent evidence of probable cause. Thus, at this point, his motion was outside the ambit of the second ground enumerated in section 995. His attack on the district attorney's conduct of the grand jury proceeding was extra-statutory, not based upon section 995 at all.

According to a few decisions, section 995 specifies the exclusive grounds for annulling an indictment in the superior court. (See People v. Van Randall, 140 Cal.App.2d 771, 774, 296 P.2d 68; People v. Collins, 60 Cal.App. 263, 269, 212 P. 701; People v. Hatch, 13 Cal.App. 521, 528, 109 P. 1097.) If these decisions represent the law, they foreclosed petitioner's nonstatutory trial court attack on the indictment, whether labeled as a motion to ‘set aside’ or one to ‘quash.’ They do not represent the law. Controlling case law recognizes that an indictment may be void for nonstatutory reasons, failing to vest the superior court with jurisdiction to proceed to trial and justifying extra-statutory intervention.

For example, before the 1949 amendment of section 995 to specify lack of probable cause as a statutory ground of attack, the writ of prohibition by a reviewing court was recognized as an extra-statutory remedy. (Greenberg v. Superior Court, supra, 19 Cal.2d 319, 121 P.2d 713.) Similarly, a writ of prohibition became available where the indictment deprived the defendant of an immunity from prosecution. (McLain v. Superior Court, 99 Cal.App.2d 109, 221 P.2d 300.) Most significant is People v. King, 66 Cal.2d 633, 644–645, 58 Cal.Rptr. 571, 427 P.2d 171, recognizing the defendant's immunity from prosecution as a nonstatutory ground for quashing an indictment.

Again, without articulating the extra-statutory character of the proceeding, the decisions recognize the availability of a motion to quash, that is, to set aside or nullify the indictment, on a charge of unconstitutional discrimination in selection of the grand jury panel. (See, e. g., People v. Sirhan, 7 Cal.3d 710, 752, 102 Cal.Rptr. 385, 497 P.3d 1121; People v. Nero, 19 Cal.App.3d 904, 907, 97 Cal.Rptr. 145; Montez v. Superior Court, 10 Cal.App.3d 343, 346, 88 Cal.Rptr. 736.)

Penal Code section 995 supplies somewhat broader grounds for attack upon an information (i. e., that ‘the defendant had not been legally committed’) than upon an indictment. Nevertheless, procedural devices for attack on the information represent a partial analogy. In Jennings v. Superior Court, supra, 66 Cal.2d at pages 874–875, 878–879, 59 Cal.Rptr. 440, 428 P.2d 304, a writ of prohibition was made available to halt trial upon an information where the conduct of the preliminary hearing had deprived the defendant of substantial rights comprehended within the concept of fair hearing and due process. The precedents cited above permit an analogous motion to quash or set aside an indictment on the extra-statutory ground that the grand jury proceeding had been conducted in violation of the defendant's substantial rights.

In this case there was no reason why petitioner could not combine his statutory and nonstatutory grounds in a single motion to invalidate the indictment. The trial court erred by refusing at first to consider petitioner's nonstatutory attack. At that time petitioner could have sought a prerogative writ to review the order. Instead, he replaced his motion to ‘set aside’ with one to ‘quash. The court then denied the latter motion on the merits. Petitioner sought prohibition more than 15 days after the first order but exactly 15 days after the second. His petition here is not lodged under Penal Code section 999a, for it does not seek review of the superior court's finding of probable cause; rather, his petition for prohibition is cognizable as a remedy outside the Penal Code. Hence the 15-day limit fixed by section 999a does not govern. We address ourselves to the merits.

II

The magistrate's order dismissing the felony complaint against petitioner was not a bar to another prosecution for the same offense, either by a second complaint or by a grand jury indictment. (People v. Uhlemann, 9 Cal.3d 662, 666, 108 Cal.Rptr. 657, 511 P.2d 609, and cases cited.) Petitioner's attack does not turn upon the correctness or error of the magistrate's dismissal order; nor does it involve a claim that the district attorney should have informed the grand jury of the dismissal. Rightly or wrongly, the magistrate dismissed the first complaint, an action which impelled the district attorney to seek a grand jury indictment. Under the Uhlemann case, supra, he could do so with complete propriety. The problem here is quite different. The question is whether the potential defendant's substantial rights were invaded by the district attorney's failure to present to the grand jury exculpatory evidence in his possession; whether that action violated the imperatives of fundamental fairness inherent in the concept of due process of law.

The framers of the Bill of Rights insisted upon indictment by the grand jury as the indispensable precondition to the trial of any person on a serious criminal charge. The Fifth Amendment to the Federal Constitution declares generally that ‘No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . .’

By 1879, when California's present constitution was adopted, the preliminary examination before a committing magistrate was regarded as an acceptable alternative. Article I, section 8, of the California Constitution states: ‘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.’

The Fifth Amendment's insistence upon a grand jury indictment as the exclusive mode for an accusation of serious crime applies only in federal prosecutions. Each state may determine for itself whether to utilize the grand jury system; the due process clause of the Fourteenth Amendment does not require it to do so (Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232; Kalloch v. Superior Court, 56 Cal. 229; People v. Erb, 235 Cal.App.2d 650, 653, 45 Cal.Rptr. 503.) It does not follow that due process is alien to the grand jury or surplus to its investigations.

Due process is a relatively fluid concept; its meaning may vary according to the particular proceeding; it has to do with the denial of ‘fundamental fairness, shocking to the universal sense of justice.’ (Kinsella v. United States, 361 U.S. 234, 246, 80 S.Ct. 297, 304, 4 L.Ed.2d 268; Wolf v. Colorado, 338 U.S. 25, 27, 69 S.Ct. 1359, 93 L.Ed. 1782; Betts v. Brady, 316 U.S. 455, 462, 62 S.Ct. 1252, 86 L.Ed. 1595.) In one sense it is a product of history, connoting the conduct of legal proceedings according to ‘the law of the land,’ that is, the rules and principles traditional to Anglo-American jurisprudence. (See Endicott-Johnson Corp. v. Encyclopedia Press, 266 U.S. 285, 288, 45 S.Ct. 61, 69 L.Ed. 288; Hurtado v. California, supra, 110 U.S. at pp. 522, 524, 4 S.Ct. 111, 28 L.Ed. 232; People v. Troche, 206 Cal. 35, 42–43, 273 p. 767; 16–A C.J.S. Constitutional Law § 567.) In criminal cases it guarantees the defendant notice of the charge against him and adequate opportunity to be heard in his defense. (Twining v. New Jersey, 211 U.S. 78, 110–111, 29 S.Ct. 14, 53 L.Ed. 97; In re Dennis, 51 Cal.2d 666, 672, 335 P.2d 657.)

There is a certain anomaly in speaking of due process in grand jury proceedings. Although the grand jury is a judicial body (Greenberg v. Superior Court, supra, 19 Cal.2d at p. 323, 121 P.2d 713; Ex parts Sternes, 82 Cal. 245, 23 p. 38), its function is inquisitorial rather than adjudicative. See Pen.Code, § 888; Blair v. United States, 250 U.S. 273, 280, 39 S.Ct. 468, 63 L.Ed, 979; Hale v. Henkel, 201 U.S. 43, 64–65, 26 S.Ct. 370, 50 L.Ed. 652; In re Shuler, 210 Cal. 377, 405, 292 p. 481; People v. Foster, 198 Cal. 112, 120, 243 p. 667.) It acts ex parte; the suspect has no right to produce evidence (Pen.Code, § 939.7); no right to appear by counsel (People v. Dale, 79 Cal.App.2d 370, 376, 179 P.2d 870); no right to confront or cross-examine adverse witnesses (People v. Foster supra, 198 Cal. at p. 120, 243 p. 667; People v. Flores, 276 Cal.App.2d 61, 65–66, 81 Cal.Rptr. 197). Lack of these conventional attributes of due process does not exclude a special, institutional variety of due process, indigenous to the grand jury, imparted to it by ‘the law of the land’ and investing it with a fundamental fairness peculiar to itself.

Imported into American legal systems by the Fifth Amendment and comparable provisions of state constitutions, the grand jury institution brought with it a set of common law characteristics. ‘The [California] Constitution of 1879 did not attempt to change the historic character of the grand jury, and the system its members had in mind was evidently the same system that had come down to them from the common law. It is in no sense a statutory grand jury as distinguished from the common law grand jury . . . Practically the only change made by the Constitution of 1879 was to provide an additional system of prosecution for the higher grade of crimes, when before all such crimes were to be prosecuted by indictment of the grand jury. No change whatever was made in the grand jury system as such.’ (Fitts v. Superior Court, 6 Cal.2d 230, 247, 57 P.2d 510, 515; see also, Costello v. United States, 350 U.S. 359, 362, 76 S.Ct. 406, 100 L.Ed. 397; Coffey v. Superior Court, 2 Cal.App. 453, 83 P. 580; Re Opinion to the Governor, 62 R.I. 200, 4 A.2d 487, 121 A.L.R. 806, 810; Kennedy and Briggs, Historical and Legal Aspects of the California Grand Jury System, 43 Cal.L.R. 251.)

The seminal opinion of Mr. Justice Matthews in Hurtado v. California, supra, demonstrates that due process—although of an idiosyncratic kind—was an historic characteristic of the common law grand jury. Justice Matthews quotes the opinion of Chief Justice Shaw of Massachusetts in Jones v. Robbins, 8 Gray 329. A finding of probable cause by the grand jury, says Chief Justice Saw, ‘is justly regarded as one of the securities to the innocent against hasty, malicious, and oppressive public prosecutions, and as one of the ancient immunities and privileges of English liberty.’ (110 U.S. at p. 522, 4 S.Ct. at p. 114.) Justice Matthews then interprets the Shaw opinion; he asserts that it was not intended to make a grand jury indictment indispensable to the accomplishment of due process, ‘but was only mentioned as an example and illustration of due process of law as it actually existed in cases in which it was customarily used.’ (110 U.S. at p. 523, 4 S.Ct. at p. 114.)

The dissent of Mr. Justice Harlan in Hurtado placed a similarly high value on the protective role of the grand jury, quoting Justice Story: “Grand juries perform . . . most important public functions, and are a great security to the citizens against vindictive prosecutions either by the government, or by political partisans, or by private enemies.” (110 U.S. at p. 555, 4 S.Ct. at p. 111.)

Thus, a vital attribute of ‘the law of the land’ is the grand jury's historic role as a barrier between arbitrary prosecutors and citizens who might suffer the anxiety and obloquy of public trial for serious crime. This attribute of due process was emphasized not only by the majority and minority opinions in Hurtado; it was echoed time and again by American courts: ‘[T]he most valuable function of the grand jury [has been] not only to examine into the commission of crimes, but to stand between the prosecutor and the accused . . ..’ (Hale v. Henkel, supra, 201 U.S. at p. 59, 26 S.Ct. 370, 373, 50 L.Ed. 652, quoted in Hoffman v. United States, 341 U.S. 479, 485, 71 S.Ct. 814, 95 L.Ed. 1118.) The California Supreme Court has declared: ‘A grand jury should never forget that it sits as the great inquest between the state and the citizen, to make accusations only upon sufficient evidence of guilt, and to protect the citizen against unfounded accusation, whether from the government, from partisan passion, or private malice.’ (Matter of Tyler, 64 Cal. 434, 437, 1 P. 884, 887; see also, Irwin v. Murphy, 129 Cal.App. 713, 717, 19 P.2d 292; Orfield, The Federal Grand Jury, 22 F.R.D. 343, 394; 38 Am.Jur.2d Grand Jury, § 26; 38 C.J.S. Grand Juries § 34.)

Necessarily implicit in the grand jury's protective role is its receptivity to evidence of innocence as well as guilt. The California Penal Code provisions touching accusations of crime before the grand jury (§§ 939–939.9) are in many respects codifications of common law concepts. Sections 939.7 and 939.8 are especially apropos.2 The former opens with the declaration that the ‘grand jury is not required to hear evidence for the defendant . . ..’ Though the Attorney General contends otherwise, this clause is not an implied exclusion of exculpatory evidence, for the section goes on to suggest the possibility of evidence ‘within its reach’ which will explain away the charge. The clause is no more than a codified description of the inquest's ex parte nature, a declaration that the defendant may not present exculpatory evidence as a matter of right. (See People v. Goldenson, 76 Cal. 328, 345, 19 P. 161.)

Section 939.8 too confirms the grand jury's receptivity to evidence which might explain or contradict the incriminating evidence.

These Penal Code provisions only explicate what is already implicit in the grand jury's protective role—its receptivity to exculpatory as well as incriminating evidence. Continued tension between the grand jury's ostensible independence and attempts at prosecutorial control has characterized its history in England and America.3 Its historic role as a buffer against arbitrary accusations assumes its possession of ponderable autonomy. The assumption requires examination in the light of history, for institutional strengths and weaknesses are not eternal.

Outside its investigative concern with the fiscal affairs of local government (see Pen.Code, §§ 925–933.5), the grand jury functions as an accusatory body for whatever criminal charges the public prosecutor lays before it. In California the public prosecutor is the only official who may present it with information and advice without awaiting its request. (Pen.Code, §§ 923, 934–936; Gov.Code, § 26501.) The public prosecutor decides what accusations to submit, what evidence to display and what advice to give. Criminal accusations bring the lay jurors face to face with legal and evidentiary problems outside the range of lay education and experience. They look to the prosecutor as ‘their’ lawyer, whose very decision to accuse imparts momentum to the accusation.4 Petit jurors are guided by a dispassionate judge and enlightened by adversary exposition; grand jurors are deprived of both these institutional mainstays. In criminal inquests their autonomy is large theoretical, because they lack the means to exercise it. Overcontrol by the public prosecutor has caused some commentators to view the grand jury as an anachronism, no longer fulfilling its traditional function as a barrier against headstrong officialdom; others call for its reinforcement rather than abolition.5

The public prosecutor is an advocate, not a judge. He need not serve as investigator and attorney for the defense. Yet, all appraisals of his function include the duty of fairness to the accused. (See Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314; In re Ferguson, 5 Cal.3d 525, 531, 96 Cal.Rptr. 594, 487 P.2d 1234; People v. Lyons, 47 Cal.2d 311, 318–319, 303 P.2d 329.) The grand jury's ability ‘to protect the citizen against unfounded accusation’ (Matter of Tyler, supra) depends initially upon the good judgment and self-restraint of the public prosecutor. He is with rare exceptions the sole purveyor of evidence and advice. If he is zealous and fair, the grand jury retains its capacity to reach an independent judgment of probable cause for indictment; if not, the grand jury will lose that capacity, for its judgment will be dominated by warped evidence, warped advice or both.6

A twisted presentation imparts an unconscious bias to the grand jurors, a bias far more virulent than the random prejudices projected by some of the jury composition decisions. (See, e. g., Peters v. Kiff (1972) 407 U.S. 493, 499–504, 92 S.Ct. 2163, 33 L.Ed.2d 83.) When bias is created, only judicial intervention can salvage the grand jury's legacy of due process. It is said that the administration of criminal justice depends upon “conscience and circumspection in prosecuting officers.” (People v. Uhlemann, supra, 9 Cal.3d at p. 670, 108 Cal.Rptr. 657, 662, 511 P.2d 609, 614, dissent of Mosk, J., quoting from Nash v. United States, 229 U.S. 373, 378, 33 S.Ct. 780, 57 L.Ed. 1232.) The object of due process is the individual's liberation from overdependence upon official conscience and circumspection. If the bias imparted by a twisted presentation does not arouse judicial intervention, the indicting grand jury will become the emasculated spawn of its virile forebears. That sort of grand jury deserves no place in constitutional structures.

In the actual trial of guilt, a district attorney need not produce evidence favorable to the accused, for the adversary system expects the defense to do so. (See People v. Kiihoa, 53 Cal.2d 748, 752, 3 Cal.Rptr. 1, 349 P.2d 673; 13 So.Cal.L.R. 143.) The prosecutor is under a duty, nevertheless, not to conceal or suppress evidence negating guilt; his intentional suppression of material evidence denies a fair trial; under many circumstances he must disclose exculpatory evidence even without a request. (In re Ferguson, supra, 5 Cal.3d at pp. 532–533, 96 Cal.Rptr. 594, 487 P.2d 1234.) When these factors are transported into the nonadversary realm of the grand jury, the prosecutor's disclosure obligation takes on a new dimension. Any prospect of exculpation from another source virtually disappears; if the prosecutor does not produce the evidence, no one will. The grand jury can perform its central function as the independent adjudicator of probable cause only if the prosecutor's duty extends beyond avoidance of suppression and includes an affirmative obligation to produce evidence in his possession or control which tends to negate guilt.7

These considerations require the postulation of a rule which may be articulated as follows: The grand jury's ability to safeguard accused persons against felony charges which it believes unfounded is an attribute of due process of law inherent in the grand jury proceeding; this attribute exists for the protection of persons accused of crime before the grand jury, which is to say that it is a ‘constitutional right;’ any prosecutorial manipulation which substantially impairs the grand jury's ability to reject charges which it may believe unfounded is an invasion of the defendant's constitutional right. Although self-restraint and fairness may be the rule, unrestraint and unfairness the exception, the inner core of due process must be effectively recognized when the exception occurs. When the prosecutor manipulates the array of evidence to the point of depriving the grand jury of independence and impartiality, the courts should not hesitate to vindicate the demands of due process. (Cf. United States v. Wells, 163 F. 313, 325; Dong Haw v. Superior Court, 81 Cal.App.2d 153, 160, 183 P.2d 724.)

At common law fairly complete secrecy surrounded grand jury proceedings. The tradition of seclusion had sound policy underpinnings but exacted a cost in terms of pretrial concealment of the state's evidence. (See United States v. Procter & Gamble Co., 356 U.S. 677, 682–688, 78 S.Ct. 983, 2 L.Ed.2d 1077.) it also cloaked arbitrary and ill-founded decisions, sometimes stemming from the overreaching of overzealous prosecutors. (United States v. American Medical Assn., D.C.D.C., 26 F.Supp. 429, 431; Commonwealth v. Smart, 368 Pa. 630, 84 A.2d 782, 785; 38 Am.Jur.2d, Grand Jury, § 41.) California Penal Code section 938.1 partially dispels the secrecy; it commands a post-indictment transcript of the grand jury testimony to be filed with the county clerk and supplied to the indicted defendant. This partial removal of grand jury secrecy does more than supply the defendant with advance awareness of prosecution testimony; it furnishes him a means of scrutinizing the fundamental fairness of the proceeding which resulted in his indictment.

In this case, petitioner's self-exculpatory testimony had been given under oath in a magistrate's court, subject to cross-examination by the prosecution. The transcript of that testimony was available as a deposition at the district attorney's request. (Pen.Code, § 869.) As a deposition, it was admissible evidence before the grand jury. (Pen.Code, § 939.6, subd. (a)(3); People v. Stuart, 4 Cal. 218, 219.) The district attorney was aware of this testimony and knew that it had moved the magistrate to dismiss the charges. The testimony was material; if believed, it provided an explanation of petitioner's trip from Lodi to Stockton behind Sherman's automobile and a basis for the belief that he was an informer rather than Sherman's co-conspirator or accomplice. (See People v. Gossett, 20 Cal.App.3d 230, 234, 97 Cal.Rptr. 528; People v. Hensling, 205 Cal.App.2d 34, 40, 22 Cal.Rptr. 702.) Out of the array of evidence presented at the preliminary hearing, the district attorney chose the evidence tending to support guilt, keeping the grand jurors ignorant of that supporting innocence. By creating a synthetic evidentiary array, the prosecutor controlled the grand jury, depriving it of its vital autonomy. By omitting part of the evidence, the prosecution imparted an unconscious bias to the grand jury's judgment. The prosecutor's action was fundamentally unfair. It deprived petitioner of his constitutional entitlement to the grand jury's independent, unbiased decision.

The Attorney General suggests that the district attorney disbelieved petitioner's testimonial description of a ‘deal.’ A prosecutor may doubtless make preliminary estimates of credibility for his own guidance, but here he forestalled a judicial body's independent judgment of the credibility of existing, sworn testimony. The grand jury, not the district attorney, was the arbiter of probable cause. (Pen.Code, § 939.8, fn. 2, supra; Lorenson v. Superior Court, 35 Cal.2d 49, 55, 216 P.2d 859.)

Petitioner does not now claim that the evidence before the grand jury did not create probable cause for his indictment. We assume that it did. That factor cannot save the indictment. This reviewing court cannot know what the grand jury might have decided had the prosecutor set out the complete array of available evidence. Where the defendant's application for relief has exposed an invasion of the grand jury's independent judgment, the indictment cannot stand, because the Constitution prohibits the method used in obtaining it. (Cf. Jennings v. Superior Court, supra, 66 Cal.2d at pp. 880–881, 59 Cal.Rptr. 440, 428 P.2d 304.)

Let the peremptory writ of prohibition issue as prayed.

I concur in the result. In do not concur in several of the broad generalizations expressed by the majority, particularly if they are intended to impose upon the District Attorney an all encompassing obligation enjoining disclosure to a grand jury of exculpatory evidence favorable to a defendant. I would go no further than to affirm the requirements expressed in the American Bar Association's Standards for Criminal Justice, Standards Relating to the prosecution Function and the Defense Function, section 3.6(b) requiring prosecutorial disclosure to the grand jury of ‘any evidence which he knows will tend to negate guilt.’

FOOTNOTES

1.  Penal Code section 995 provides in part: ‘The indictment or information must be set aside by the court in which the defendant is arraigned, upon his motion, in either of the following cases: If it be an indictment: 1. Where it is not found, endorsed, and presented as prescribed in this code. 2. That the defendant has been indicted without reasonable or probable cause . . .’

2.  Penal Code section 939.7: ‘The grand jury is not required to hear evidence for the defendant, but it shall weigh all the evidence submitted to it, and when it has reason to believe that other evidence within its reach will explain away the charge, it shall order the evidence to be produced, and for that purpose may require the district attorney to issue process for the witnesses.’Penal Code section 939.8: ‘The grand jury shall find an indictment when all the evidence before it, taken together, if unexplained or uncontradicted, would, in its judgment, warrant a conviction by a trial jury.’

3.  See Costello v. United States, supra, 350 U.S. at p. 362, 76 S.Ct. 406, 100 L.Ed. 397; Hale v. Henkel, supra, 201 U.S. at pp. 59–63, 26 S.Ct. 370, 50 L.Ed. 652; Kennedy and Briggs, Historical and Legal Aspects of the California Grand Jury System (1955) 43 Cal.L.R. 251; Schwartz, Demythologizing the Historic Role of the Grand Jury (1972) 10 Am.Crim.L.R. 701.

4.  A spate of constitutional decisions demands that indicting grand juries be selected to reflect a socio-economic cross-section of the county population. (See People v. Superior Court, Cal.App., 113 Cal.Rptr. 732, filed concurrently herewith.) Paradoxically, one commentary observes that a grand jury composed primarily of the educated and economically successful is less likely to ‘rubber stamp’ the prosecuting attorney. (Kennedy and Briggs, op. cit. supra, 43 Cal.L.R. at pp. 260–261.)

5.  Bickner, The Grand Jury . . . A Layman's Assessment, 48 Cal.State Bar J. 660; Calkins and Davis, Legislative Improvements of the State Criminal Process, 41 So.Cal.L.Rev. 816; Comment, The Nature of the California Grand Jury: An Evaluation, 2 Santa Clara Lawyer 72; National Com. on Law Observance and Enforcement, Report on the Prosecution (Wickersham Report) p. 124; Schwartz, op. cit. supra, fn. 3; Younger, The Grand Jury Under Attack, 46 J.Crim.L., Criminology and Police Sci. 26–49, 214–225; Antell, The Modern Grand Jury: Benighted Supergovernment, 51 A.B.A.J. 153; Wickersham, The Grand Jury: Weapon Against Crime and Corruption, 51 A.B.A.J. 1157; Lumbard, The Criminal Justice Revolution and the Grand Jury, 39 N.Y.St.Bar J. 397; Goodell, Where Did The Grand Jury Go? Harper's (May 1973) p. 14.

6.  One perceptive commentator discusses the modern grand jury's heavy reliance upon the public prosecutor and suggests: ‘The relative decline in importance of the grand jury as an independent investigative body underscores the continued importance of its remaining function: determining probable cause. The grand jury's independent judgment of probable cause serves as a basic check on prosecutorial discretion.’ (Comment, Grand Jury Proceedings: The Prosecutor, The Trial Judge, and Undue Influence (1972) 39 U.Chi.L.R. 761, 764.)

7.  This obligation is recognized by the American Bar Association's Standards for Criminal Justice, Standards Relating to the Prosecution Function and the Defense Function, section 3.6, which declares in part: ‘The prosecutor should disclose to the grand jury any evidence which he knows will tend to negate guilt.’The American Bar Association's Code of Professional Responsibility, Disciplinary Rule 7–103, contains a more general declaration, calling upon the public prosecutor to disclose to the defense evidence tending to negate guilt.It should be emphasized that these obligations of fairness, whether to produce evidence or to avoid its suppression, do not require the prosecutor to seek out evidence of innocence; rather, these obligations are confined to evidence in his possession or within his awareness and ability to produce.

FRIEDMAN, Associate Justice.

JANES, J., concurs.

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