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PEOPLE v. POMPA ORTIZ

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Court of Appeal, Second District, Division 5, California.

The PEOPLE, Plaintiff and Respondent, v. Ramon POMPA-ORTIZ, Defendant and Appellant.

Cr. 33560.

Decided: November 27, 1979

Enrique M. Ramirez, Santa Maria, for defendant and appellant. George Deukmejian, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., S. Clark Moore, Asst. Atty. Gen., James H. Kline and Beverly K. Falk, Deputy Attys. Gen., for plaintiff and respondent.

Ramon Pompa-Ortiz (appellant) was charged with rape by force or violence on Maria A. in violation of Penal Code section 261, subdivision 2. After a trial by jury, appellant was found guilty and sentenced to state prison.

Appellant and the victim, Miss A., were first cousins. At the time of the rape on February 27, 1978, Miss A. was living with appellant's sister in the small town of Buellton. On that evening at appellant's request Miss A. agreed to accompany him to a nearby store. Instead, appellant drove to Santa Inez. On the way back to Buellton, appellant pulled off the road and parked. Overcoming Miss A.‘s resistance with force appellant raped her three times during a period of several hours. On the following day Miss A.‘s employer noticed that she was extremely pale and apparently sick. Under questioning by her employer, Miss A. related to her what appellant had done and the rapes were reported to the police, who arrested appellant. Subsequently Miss A. moved out of the home of appellant's sister.

Appellant's preliminary hearing was set for March 13, 1978, at 9 a. m.1 When the matter was called, the People requested that the hearing be closed. The request was taken under submission and the matter set for the 1:30 calendar. At that time, over appellant's objection, the magistrate ordered the hearing closed.2 The only witnesses who testified against appellant during the hearing were Miss A. and Officer James Wilkinson who testified concerning appellant's alleged violation of probation.

Appellant's basic contention is that although his trial was public, his conviction should be reversed because the magistrate committed prejudicial error by closing the preliminary hearing. We find that contention to be without merit.

DISCUSSION

Penal Code section 868 provides in pertinent part as follows:

“The magistrate must also, upon the request of the defendant, exclude from the examination every person except his clerk, court reporter and bailiff, the prosecutor and his counsel, the Attorney General, the district attorney of the county, the investigating officer, the officer having custody of a prisoner witness while the prisoner is testifying, the defendant and his counsel, and the officer having the defendant in custody . . . .”

Though he cites no relevant California authority, appellant argues that this statutory right to require that the preliminary hearing be closed necessarily implies a converse right to have a public preliminary hearing because he did not request that the hearing be closed. We are not persuaded. Hawkins v. Superior Court, 22 Cal.3d 584, 150 Cal.Rptr. 435, 586 P.2d 916, although not squarely in point, is instructive. In Hawkins our Supreme Court held that the defendants indicted by a grand jury have the right to a preliminary hearing. Although a basic aspect of grand jury indictment procedures is that they are closed proceedings, it is significant that the Supreme Court did not base any part of its decision on any claimed right of a defendant to have a public hearing before trial. The court, at page 587, 150 Cal.Rptr. at pages 436-437, 586 P.2d at pages 917-918, gave its reasons as follows: “The defendant accused by information ‘immediately becomes entitled to an impressive array of procedural rights, including a preliminary hearing before a neutral and legally knowledgeable magistrate, representation by retained or appointed counsel, the confrontation and cross-examination of hostile witnesses, and the opportunity to personally appear and affirmatively present exculpatory evidence. (Pen.Code, s 858 et seq.; Jennings v. Superior Court (1967) 66 Cal.2d 867, 59 Cal.Rptr. 440, 428 P.2d 304.)’ (Johnson v. Superior Court (1975) 15 Cal.3d 248, 256, 124 Cal.Rptr. 32, 37, 539 P.2d 792, 799 (conc. opn. by Mosk, J.).)”

Citing People v. Tarbox, 115 Cal. 57, 46 P. 896 and People v. Weber, 68 Cal.App. 680, 230 P. 180, appellant argues that the closure of the preliminary hearing violated his constitutional rights in a fundamental sense. Appellant's reliance on Tarbox and Weber is misplaced. In Tarbox, the defendant claimed that he was not accorded the right to a public examination during his preliminary hearing even though the public had been excluded at his own request. The court held that he had waived “the ‘right’ to a public examination.” (115 Cal. at p. 62, 46 P. at p. 897.)3 People v. Weber involved a preliminary hearing held in a prison. The express holding of the court was that there was no evidence that the public had been excluded.

Essentially we have before us a rape case involving members of the same family living in a very small town. The notoriety and emotional overtones of such a case are obvious. This was recognized and well stated by our Supreme Court in People v. Rincon-Pineda, 14 Cal.3d 864, 880, 123 Cal.Rptr. 119, 130, 538 P.2d 247, 258, as follows:

“The low rate of conviction of those accused of rape and other sexual offenses does not appear to be attributable to a high incidence of unwarranted accusations. Rape in particular has been shown by repeated studies to be grossly under-reported. (See, e.g., FBI Uniform Crime Reports 1973, Supra, at p. 15; LeGrand, Rape and Rape Laws: Sexism in Society and Law (1973) 61 Cal.L.Rev. 919, 921; Note, Supra, 81 Yale L.J. at pp. 1374-1375; Amir, Patterns in Forcible Rape (1971) pp. 27-28.) The initial emotional trauma of submitting to official investigatory processes, the fear of subsequent humiliation through attendant publicity and embarrassment at trial through defense tactics which are often demeaning, and a disinclination to encounter the discretion of the police in deciding whether to pursue charges of rape, especially with regard to what may appear to the police to be ‘victim-precipitated’ rapes, are among the powerful yet common disincentives to the reporting of rape.”

As stated by the magistrate, his ruling was made for the purpose of protecting both family members in a sensitive situation and as a reasonable precaution necessary to protect a victim witness where her testimony could be substantially inhibited or prevented by the presence of spectators.

Notwithstanding, assuming that it was error for the magistrate to permit Miss A. to testify out of the presence of spectators, the error is harmless. It must be remembered that appellant's trial was public and all witnesses testified in open sessions. Under the circumstances of this case there could be no prejudice to appellant. Appellant's reliance on People v. Elliot, 54 Cal.2d 498, 6 Cal.Rptr. 753, 354 P.2d 225, is misplaced. In Elliot the magistrate refused to close the courtroom pursuant to defendant's motion under Penal Code section 868. The Supreme Court held that this error was prejudicial since “(o)ne of the main purposes of section 868 is to give the defendant the opportunity of protecting his right to an impartial and unbiased jury by preventing dissemination of this testimony, either by newspaper or other media prior to trial.” (Id., at p. 504, 6 Cal.Rptr. at p. 757, 354 P.2d at p. 229.) The problem created by the magistrate's error in Elliot was presumed prejudicial because the information disseminated as a result of the magistrate's refusal to close the hearing could have prevented the defendant's subsequent trial by an impartial jury. Following that reasoning in the instant case, appellant's right to an impartial trial was furthered by the magistrate's decision.

Appellant's reliance on the rationale of People v. Jones, 47 N.Y.2d 409, 418 N.Y.S.2d 359, 391 N.E.2d 1335, also is misplaced. Although we, of course, are not bound by the decisions of out-of-state courts, a discussion of the Jones decision is helpful in putting the instant case into perspective. In Jones the trial judge closed the trial to the public during the testimony of a former undercover officer.4 The court held that the error was prejudicial, stating: “The practical impossibility of demonstrating prejudice faces an accused as well. Conceptually, a member of the public witnessing a trial may discover that he possesses material information which he will then volunteer to the parties. Or, the presence of the public may have a salutary influence in deterring a witness from perjuring himself in ways that would have been difficult for the defense to counteract. To require the defendant to undertake the well-nigh impossible task of proving prejudice would render the right to a public trial illusory and beyond appellate review on that basis.” (418 N.Y.S.2d at p. 364, 391 N.E.2d at pp. 1340-1341; citations omitted.)

There are several obvious differences between the instant case and Jones. The dispositive difference is that Jones involved a trial. Perhaps, as the court speculated, witnesses may have been discovered had the trial been public. However, in the instant case the trial was public. Furthermore, there is not even a suggestion in the record that appellant was deprived of witnesses. Certainly, in an area like Buellton-Santa Inez where a crime has been committed involving a member of the same family and appellant's subsequent trial was totally open to the public, it is clear that there was no prejudice to appellant.

The New York court in Jones stated that some courts have found it “more comfortable to simply say that” the error alleged by the defendant is impliedly prejudicial. (Id., 418 N.Y.S.2d at p. 364, 391 N.E.2d at p. 1341.) That may be, but we think justice should not be measured by what is comfortable for the courts.

Affirmed.

I respectfully dissent.

In view of the divergent interpretations of last summer's United States Supreme Court opinion in Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979), I shall not even attempt an analysis based on federal constitutional principles. As far as our state constitution is concerned, neither counsel nor any member of this court has been able to find any clause which guarantees the right to a public preliminary hearing, as distinguished from a public trial. (See Cal.Const., art. I, ss 14, 15.) On the other hand, looking at section 868 of the Penal Code, I cannot conceive of statutory language which more clearly assumes and implies that there is a right to a public preliminary hearing and that the only person who has the power to close the courtroom doors to the public is the defendant. To repeat the pertinent opening words: “The magistrate must also, Upon the request of the defendant, exclude from the examination every person except . . . ” (Emphasis added.) As for the casual enumeration of procedural rights in Hawkins v. Superior Court (1978) 22 Cal.3d 584, 587, 150 Cal.Rptr. 435, 586 P.2d 916, the quote is from Justice Mosk's concurring opinion in Johnson v. Superior Court (1975) 15 Cal.3d 248, 256-257, 124 Cal.Rptr. 32, 37, 539 P.2d 792, 797, where the author says pejoratively of grand jury proceedings that they “are conducted in absolute secrecy, . . . ”1 In any event, I have no doubt that the Hawkins court did not intend an exclusive list of all procedural rights of the accused at preliminary hearings. The fact that no statute expressly provides that such hearings shall be public indicates to me only that the Legislature thought the proposition so obvious that it was not worth wasting ink on.2

Since I have no doubt that the magistrate erred in closing the preliminary hearing to the public the only real question is whether the error was reversible. I could simply refer to People v. Elliot (1960) 54 Cal.2d 498, 503, 6 Cal.Rptr. 753, 354 P.2d 225 and note that the error deprived the superior court of “jurisdiction” how to proceed. Nevertheless, since I have always had certain problems with that pronouncement,3 I shall try to analyze the issue on its merits.

It seems to me that nothing but a per se rule of reversible error can put teeth into the defendant's right to a public preliminary hearing.4 To require him to show prejudice may well be to demand the very showing which the error in closing the courtroom has made impossible. The entire question was recently before the New York Court of Appeals in People v. Jones (1979) 47 N.Y.2d 409, 418 N.Y.S.2d 359, 391 N.E.2d 1335. Although that decision rested on constitutional grounds and involved a trial rather than a preliminary hearing, the answer to the question of the effect of error should be the same. Said the court: “Conceptually, a member of the public witnessing a trial may discover that he possesses material information which he will then volunteer to the parties. Or, the presence of the public may have a salutary influence in deterring a witness from perjuring himself in ways that would have been difficult for the defense to counteract. To require the defendant to undertake the well-nigh impossible task of proving prejudice would render the right to a public trial illusory and beyond appellate review on that basis (citations omitted).” For what it is worth, on November 5, 1979 the United States Supreme Court denied certiorari. (New York v. Jones (1979) 444 U.S. 946, 100 S.Ct. 307, 61 L.Ed.2d 315.)

I would reverse.

FOOTNOTES

1.  The hearing took on a dual purpose since appellant also was charged with a violation of probation and driving with a revoked or suspended license.

2.  The magistrate explained his ruling as follows: “Well, the Code provides for a private hearing for the benefit of the defendant, so that the public will not be apprised of what is going on in the event that the defendant is found is not held to answer and the reason for the request on the part of the People is that we have a rape victim who is going to testify, and that these matters are sensitive, and it may be that from the defendant's standpoint, he may not be held to answer, and if that is the case, then he certainly would want these proceedings not to have been public. (P) By the same token, it is in the interest of the victim to be able to testify without having the public listen to the testimony. I feel that it actually is in the interests of both parties to exclude all persons from the examination with the exception of the clerk, the bailiff, the District Attorney, investigating officer, the defense attorney, the defendant, the interpreter for the defendant, and the court reporter and myself from these proceedings.”

3.  The Supreme Court's use of quotation marks with the word “right” indicates it was using defendant's characterization and not its own.

4.  The court in holding this to be error pointed out that the officer was no longer “in undercover activity, that indeed, he had already been serving in his new assignment as a uniformed patrolman for the last six months, and that his beat was distant from his former theatre of operations. Specifically, he made clear that he was not involved in any ongoing narcotics investigations, whether by way of carry-over from his previous work or otherwise.” (People v. Jones, Supra, 47 N.Y.2d 409, 418 N.Y.S.2d 359, 361, 391 N.E.2d 1335, 1338.)

1.  I appreciate that grand jury proceedings, which not even the prospective defendant may attend except possibly as a witness, are more secret than preliminary hearings where only the public is excluded.

2.  In this case the hearing was closed to the public to spare the feelings of a rape victim. It is noted that the Legislature has not been callous in that respect. Starting in 1915, section 868 entitled a female prosecuting witness, in the court's discretion, to the attendance of a person of her own sex. In 1976 that privilege was broadened to prosecuting witnesses of either sex (Stats.1976, ch. 1178, s 2). In 1978 the Legislature added special provisions concerning prosecuting witnesses in rape and certain other sex cases. (Pen.Code s 868.5.) Of course the 1978 amendment did not apply to the preliminary hearing in this case which took place in March of that year.

3.  See Iungerich, Reversing Perfect Trials, California Style, 48 Los Angeles Bar Bulletin, page 88.

4.  In this respect the situation is quite similar to an erroneous denial of a defendant's right to represent himself. (See e. g., People v. Freeman (1977) 76 Cal.App.3d 302, 308-311, 142 Cal.Rptr. 806 and cases cited therein.)

ASHBY, Associate Justice.

HASTINGS, J., concurs.

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