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Court of Appeal, Second District, Division 2, California.

Peter Carmen PARISI, Petitioner, v. SUPERIOR COURT of the State of California For the COUNTY OF LOS ANGELES, Respondent, PEOPLE of the State of California, Real Party in Interest.

Civ. 68398.

Decided: June 22, 1983

Wilbur F. Littlefield, Public Defender, Laurence M. Sarnoff, Martin Staven, and Ronald B. Davey, Deputy Public Defenders, for petitioner. No appearance for respondent court. Robert H. Philibosian, Dist. Atty., Donald J. Kaplan and Richard W. Gerry, Deputy Dist. Attys., for real party in interest.


Defendant is charged with having committed lewd acts (Pen.Code, § 288(a)) and rape by force or fear (Pen.Code, § 261(2)) on his own daughter when she was eight years of age.   By this petition, he attacks his preliminary examination at which his daughter whispered two of her responses to the prosecutor's questions to the magistrate who then proclaimed them aloud for the record.

At that hearing, the daughter testified that during one afternoon in July, 1982, she had been alone in her residence when her father, the defendant, entered her bedroom and touched part of her body.   When asked by the prosecutor to testify to or point to that part of her body that defendant had touched, she experienced great discomfort and did not respond, stating that she was “scared.” 1  She did, however, eventually agree to whisper her reply to the magistrate personally, who then stated:  “The witness has indicated to me very artfully and with a great deal of embarrassment and tears she was touched between her legs.”

When the prosecutor thereafter asked the victim what part of defendant's body had touched her, and no response was forthcoming, she was again permitted to whisper her answer to the magistrate.   He then announced:  “The witness in her artful expression has indicated ‘his dick.’ ”

Defendant's objections to this procedure were overruled 2 and the People's questioning of the victim continued.   She testified that following the encounter with her father, she had felt pain by her legs and in the area where he had placed his penis.

At the close of her direct examination, defense counsel, rather than attempting to cross-examine the victim, merely asked her if she then wished to state aloud that which she had earlier whispered to the magistrate.3  Naturally she responded in the negative, and counsel immediately moved on to another area.   However, after he had completed his questioning, and the People asked that she be excused, defendant moved to strike all of her testimony on the basis that his right to confront and cross-examine her had been abridged.   The motion was denied.

The victim's mother then testified that in July 1982, she had left defendant and her daughter alone in their apartment for several days.

The last witness for the People was the investigating officer.   When she was asked to testify concerning a tape-recorded conversation she had had with defendant, following full compliance with Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 his counsel objected on the basis that the People had failed to establish the corpus delicti of either of the charged offenses.   In support of this claim, he again urged that the manner in which the daughter's testimony had been received, violated defendant's rights of confrontation and cross-examination.

When this objection, too, was overruled, the investigating officer related defendant's voluntary admissions that he had committed lewd acts upon his daughter but had denied having raped her.   Defendant had advised the officer further that he wished to plead guilty because he “did it” and wanted “to get it over with.”

At the conclusion of the preliminary hearing, defendant renewed his previously made objections to the testimony of both the victim and the investigating officer.   In addition, he urged that in any event, there was no evidence to support the rape charge.

The magistrate held defendant to answer for both offenses and the People thereafter filed an information in the superior court charging him with violations of Penal Code sections 261 and 288.   When arraigned there defendant noticed a Penal Code section 995 motion in which he renewed his earlier claims.

The superior court did not rule upon defendant's motion to dismiss.   Instead, it instructed the People to move to remand the cause to the municipal court for proceedings in accordance with the recently enacted Penal Code section 995a, subdivision (b).4  This subsection permits an action to be once returned to the municipal court without dismissing the information, in order to take additional testimony “to correct errors alleged by the defendant if the [superior] court finds that such errors are minor errors of ommission, ambiguity, or technical defect which can be expeditiously cured or corrected without a rehearing of a substantial portion of the evidence.”

In granting what in essence was its own motion, the superior court ruled:

“[T]hat based upon the transcript that the Court finds that there has been ambiguity in regard to the victim's testimony on the stand, that there were minor errors committed in the manner and the method in which the Magistrate undertook to receive the answers to questions propounded by the prosecution.

“The Court finds that because of the age of the victim, the sensitivity of this type of case, that they will fit within the constraints of this section and be remanded to the Magistrate to have the victim answer those questions directly in open court and that each party will be allowed such examination and cross-examination on those answers as may be necessary.”

Following this order of remand, the instant petition was filed.   We granted a stay of all proceedings that we might consider the initial merits of defendant's claims.   Thereafter, we requested and have received opposition from the People, which we have deemed to be a return to defendant's petition, and defendant has filed a reply thereto.   Further each side has now appeared and presented oral argument in response to our order to show cause.

Technically the present petition is mistaken in its assertion that defendant is contesting the denial of his Penal Code section 995 motion, i.e., the record clearly reveals that no ruling has yet been made on that motion.   Of course, this factual posture is consistent with subsection (b) of Penal Code section 995 which provides:  “In cases in which the procedure set out in subdivision (b) of [Penal Code] Section 995a is utilized, the court shall reserve a final ruling on the motion until those procedures have been completed.”   Therefore, to the extent this petition purports to be predicated upon the “denial” of defendant's section 995 motion, it is inaccurately phrased.   Nonetheless, we have elected to construe it as a request to compel the superior court to rule upon defendant's motion without resort to additional proceedings in the municipal court.

Defendant's contention that the remand ordered herein is not within the purview of Penal Code section 995a, subdivision (b), is well taken.   That section appears to be little more than a codification of our Supreme Court's holding in Burnett v. Superior Court (1974) 12 Cal.3d 865, 117 Cal.Rptr. 556, 528 P.2d 372.   In Burnett a defendant was charged with two counts of robbery.   Testimony at his preliminary hearing might not have sufficiently identified him as the perpetrator of the offenses.   He, therefore, brought a motion to dismiss the information but pursuant to the prosecutor's suggestion, the superior court remanded the cause to the municipal court to take further testimony.   Defendant sought a writ of mandate to compel the superior court to rule on his motion based on the evidence already adduced.

In granting the relief requested in Burnett, our Supreme Court noted that in certain limited circumstances, a remand will be appropriate “․ for the purpose of correcting a procedural irregularity or to correct an inadvertence which is clerical in nature.”  (Id., at p. 872, 117 Cal.Rptr. 556, 528 P.2d 372.)   However, it further held that such a procedure would be inappropriate if ordered to correct a defect in the commitment which was judicial in nature.   Manifestly, a magistrate's factual determination that the evidence produced at a preliminary hearing is sufficient to bind an individual over for trial is a judicial act.  (Id., at pp. 873–874, 117 Cal.Rptr. 556, 528 P.2d 372.)

 While we believe that newly enacted Penal Code section 995a, subdivision (b), should be liberally construed so its beneficent objectives may be realized,5 nonetheless to the extent that it codified Burnett's holding by declaring that a remand is appropriate only to cure “minor errors of omission, ambiguity, or technical defect ․,” it follows that it may not be here utilized to accomplish the goal disapproved of in Burnett;  i.e., the taking of additional testimony from a victim that is directed to the substantive merits of the charged offenses themselves.6  Therefore we conclude that the ordered remand was improper and the superior court should have ruled immediately upon defendant's Penal Code section 995 motion based solely upon the evidence theretofore presented at his preliminary examination.

 Of course, in ruling upon such a motion, the superior court sits as a reviewing court in passing upon the sufficiency of the showing made.   As such it must view all the evidence in the light most favorable to the prevailing party and must draw every legitimate factual inference therefrom that reasonably tends to uphold the committing magistrate's decision.   This, of course, is the same standard of review that we would thereafter employ in judging the propriety of a superior court's decision.  (People v. Superior Court (Maciel ) (1982) 134 Cal.App.3d 893, 897–898, fn. 5, 184 Cal.Rptr. 870, and cases cited therein.)   Accordingly, to avoid further delaying the underlying criminal proceedings, we deem it appropriate to determine the merits of defendant's motion to dismiss at this time.

As heretofore noted, it is defendant's basic contention that his constitutional right to confront and cross-examine his daughter was lost when she was allowed to whisper two of her responses to the magistrate and, thereafter, twice confirmed the fact she did not wish to repeat them aloud.   He also urges that in any event the evidence was insufficient to sustain the charged rape.   We find merit only in the latter point.

 It is the responsibility of every court to conduct its proceedings in such a manner that the truth will be established and it is its duty to render assistance whenever such aid is needed.  (See People v. Harrell (1967) 252 Cal.App.2d 735, 742–743, 60 Cal.Rptr. 864;  People v. Campbell (1958) 162 Cal.App.2d 776, 787, 329 P.2d 82;  Evid.Code, § 765;  Pen.Code, § 1044.)

 In the case at bar, because of her fear and discomfort, a young victim of sexual crimes committed by her father was too embarrassed to articulate aloud answers to two most intimate questions.   Under such circumstances it was not improper for the magistrate to intervene in order to help elicit her testimony.   In essence, the court did but act as a “loudspeaker” for a child temporarily rendered mute.

The situation was not qualitatively different from one in which a true mute, unable to testify verbally because of physical impediments, states his or her testimony in sign language which in turn is verbally placed on the record by an interpreter selected and sworn by the court.   We cannot, and will not, presume that in the instant matter, the magistrate was less accurate in stating the victim's testimony than an interpreter would have been.7  The magistrate's actions were reasonable and in no way displayed any bias or prejudice toward either party.

We also find no constitutional impropriety in the actions taken by the magistrate to facilitate the truth seeking function of this initial proceeding (see People v. Luna (1983) 140 Cal.App.3d 788, 793, 189 Cal.Rptr. 792);  a proceeding that in this instance was required to determine only if there was sufficient proof of the corpus delicti of a crime to which defendant already had fully confessed.8

We also find no merit in defendant's claim that he was denied his constitutional right to cross-examine his daughter, since the major premise underlying it was not established.   The record merely discloses that defense counsel twice asked the victim if she had changed her mind and “wanted to” personally pronounce aloud that which she had earlier whispered to the magistrate and which he had then declared for all to hear.  (See fn. 3.)   She, of course, indicated that such was not her “want.”   In sum, no true attempt was ever made to cross-examine her on the subject of the testimony she had “broadcast” via the court itself.

We do not interpret this child's essentially inevitable responses to counsel's questions as constituting a refusal to testify further regarding the part of her body where defendant had touched her or the manner in which he had touched her.   If counsel had so desired, he might have pursued these issues in various ways, e.g., by asking her if the magistrate had repeated her statements correctly, by inquiring whether those statements were in fact true, by seeking further details concerning them, etc., etc.9  If the victim had still declined to personally provide answers to any of these questions aloud, defendant might have requested the court's aid in obtaining a response in the same fashion utilized during her direct examination.   Instead, the defense opted not to avail itself of any such opportunities or even to test their sufficiency.   It will not now be heard to complain that as a matter of law, effective cross-examination was shown to be impossible.

We find defendant's reliance upon Herbert v. Superior Court (1981) 117 Cal.App.3d 661, 172 Cal.Rptr. 850, misplaced.   There, when a five-year-old victim was reluctant to testify at a preliminary hearing, the court rearranged the seating plan so that the defendant was unable to see her.   The appellate court disapproved of this procedure because the accused was not able to observe the victim's demeanor as she spoke.   Here, there is nothing in the record to even suggest that defendant was unable to observe his daughter when she whispered her two answers to the magistrate 10 or during the remainder of her testimony.

 In sum, insofar as this preliminary examination is concerned, we find no fatal flaw in the manner in which the victim answered the prosecutor's questions or the way in which she responded to defense counsel's most limited inquiry.   We further conclude that her testimony provided that slight proof required to establish the corpus delicti of a lewd touching (see People v. Mohr (1938) 24 Cal.App.2d 580, 582, 75 P.2d 616;  and generally, Witkin, Criminal Law, § 90, and cases cited therein), thereby justifying defendant's being held to answer on this charge.   It was insufficient, however, to sustain the accusation that he was guilty of rape.

Let a peremptory writ of mandate issue compelling respondent superior court to rule upon defendant's motion to dismiss (Pen.Code, § 995) in accordance with the views expressed herein without resort to further proceedings in the municipal court.   Our stay order issued April 11, 1983, is to remain in effect pending the finality of this decision.


1.   Her condition was certainly understandable seeing that in response to defense counsel's request for a closed hearing, the prosecution, for some unspecified reason, had voluntarily excluded the child's guardian, thus leaving her alone in the strange confines of a courtroom with a group of adult males, which included her father, even though the magistrate had expressly stated that he would allow the guardian to remain in accordance with the provisions of Penal Code section 868.

2.   Responding to the first objection, the court stated:  “I understand your objection.   But I think under the circumstances, that we have a little girl here who is kind of upset, so I'm going to, on that basis, overrule your objection and let my statement stand for the record.   It is what she has told me.  [¶]  Again, as we have a difficult and unusual circumstance here to get to the truth of the matter, which is really what these preliminary hearings are all about.”  (Emphasis added.)

3.   “Q. Just a little while ago the Judge asked you to whisper something to him.   Do you remember that?   A.  Yes.   Q.  You did whisper something to him?   A.  Yes.   Q.  Can you tell us now what you told the Judge?   You don't want to say what you told the Judge?   No?  Can you answer yes or no to that?   A.  No.   Q.  Then again later you whispered to the Judge.   Can you tell me what you told him then?   You don't want to tell me again what you told the Judge?   Is that yes or no?   A.  No.”

4.   The prosecutor's remarks in this respect were as follows:  “[A]t side bench the Court requested the People to ask that the case go back under 995.1 [sic ] for further clarifications on the questions on cross-examination that Mr. Staven had reference to.   In deference to the Court, I will so move that the matter go back to the original preliminary hearing and the Magistrate so that those questions can be gone into again.  [¶]  I think basically what happened at the preliminary hearing, Your Honor, is that [defense] counsel failed to make an adequate record and he knew what he was doing and that's why he didn't make an adequate record because he hoped to prevail on some technical motion at that point.”  (Emphasis added.)

5.   The court in Burnett concluded with this observation:  “The People also argue that the challenged procedure is one which effectively accomplishes justice without the denial of fundamental rights and, at the same time effects judicial economy and provides an accused a more timely final determination on the merits.   Such arguments are more properly addressed to the Legislature and we decline to consider them.”  (Id., at p. 874, 117 Cal.Rptr. 556, 528 P.2d 372)Contrary to the concern expressed by the People, our present interpretation of the Legislature's response will not preclude a matter being remanded in order to correct through the taking of further testimony such suggested oversights as an inadvertent failure to establish (1) the charged crime was committed in the county where prosecuted, (2) the age of a minor sex-offense victim (3) the day or hour when an already identified event occurred, etcetera.   Whether such shortcomings be properly characterized semantically as “jurisdictional,” “judicial” or “technical” in nature, they are defects that, though fundamental in the formal sense, generally will not be the subject of serious dispute and which, ordinarily, can be corrected with little more than a word.

6.   Burnett, of course, was authored prior to the amendment of Penal Code section 1387 that now bars further proceedings after a matter has been twice dismissed under section 995.   For unknown reasons such an earlier order was made in this instance, perhaps explaining the superior court's desire to invoke the provisions of section 995a, subdivision (b), before considering defendant's motion to dismiss on its merits.

7.   The constitutional oath taken by all judicial officers of this state (Cal.Const., art. 20, § 3) certainly creates no lesser obligation than that imposed on interpreters in criminal proceedings to faithfully and truthfully translate the matters before them.  (Evid.Code §§ 750, 751;  see People v. Chavez (1981) 124 Cal.App.3d 215, 225, 177 Cal.Rptr. 306;  see also Evid.Code, § 664.)

8.   We need not now decide, and we express no opinion upon the question whether such a procedure as here adopted would ever be permissible in the course of a plenary trial in the superior court that might result in an accused's actual conviction.

9.   In fact when this witness, who had been found to be competent and who had sworn to tell the truth, was asked at the conclusion of her direct examination, “Did you have pain in the same place where your daddy put his dick?” she replied aloud, “Yes,” thereby confirming in large measure the court's earlier statements regarding her whispered answers.

10.   In fact, defendant's objection to the court's repeating of the first whispered statement was that the court reporter could not hear the victim.

GATES, Associate Justice.

ROTH, P.J., and BEACH, J., concur.