PEOPLE v. Barbara Jean Elliot, Defendant and Appellant.* (1960)

Convicted in a non-jury trial on two counts charging violations of Penal Code, § 288a, appellant was sentenced to one year in the county jail, the sentences on the two counts to run concurrently. Sentence was suspended and probation was granted on the condition, among others, that a fine of $300 be paid. Appealing from the judgment, appellant advances but one contention, namely: that the trial court erred in denying her motion ‘to exclude the evidence in this matter’, said motion having been made on the ground that her substantial rights had been violated when the judge presiding at her preliminary hearing allowed a newspaper reporter to remain in the courtroom after she had made an appropriate request invoking section 868 of the Penal Code.

Section 868 provides as follows: ‘The magistrate must also, upon the request of the defendant, exclude from the examination every person except his clerk, the prosecutor and his counsel, the attorney general, the district attorney of the county, the defendant and his counsel, and the officer having the defendant in custody; provided, however, that when the prosecuting witness is a female she shall be entitled at all times to the attendance of a person of her own sex.’

At the opening of the trial, appellant's counsel made a motion to exclude evidence on the ground above stated. There appears to be no dispute as to the fact that at the preliminary hearing appellant sought to invoke section 868 and that the judge there presiding did in fact clear the courtroom except that a newspaper reporter was allowed to remain during at least a portion of the proceedings. In making his motion counsel commented: ‘Now, as Your Honor recalls, I reported to you that this matter was brought up under a Writ of Prohibition, both to the District Court of Appeals and to the Supreme Court. Both of these petitions were denied without opinion. Upon reconsidering this matter, if the Court please, I now feel that a Writ of Prohibition was actually not proper at the time. Rather than ruling on the merits of the case, I feel it was a matter that was not properly brought under a Writ of Prohibition. For this reason, at this time, the Defendant Elliot wishes to move that the primary evidence concerning this matter be suppressed on the basis that the Preliminary Hearing was, as is indicated in the transcript of the Preliminary Hearing, which I will offer in evidence, or which Counsel will stipulate to—violated Section 868 in that the matter was wrongfully admitted over the objection of the defendant throughout the entire proceeding.’

The essence of appellant's argument is stated in her opening brief as follows: ‘Appellant respectfully submits that a purpose of Section 868 of the Penal Code is to prevent public dissemination of unchallenged and unrefuted charges against a defendant in the initial stages of a felony prosecution so that the defendant will not stand convicted in the minds of prospective jurors, and thus be required to overcome an informal presumption of guilt at the Superior Court trial; that a purpose of Section 868 is to preserve defendant's right to a trial by an unbiased jury; that such section is a fair trial statute; that by permitting a news reporter to remain in the courtroom and attend the examination at a preliminary hearing over a defendant's objection, a magistrate violates Section 868 and frustrates a defendant from receiving a trial by an unbiased jury in the Superior Court; and a Superior Trial Court errs when it refuses to dismiss the proceedings in such case.’

We may assume, without deciding, that appellant is correct in her contentions relating to the legislative purpose and intent underlying section 868. The fatal weakness in her position here is that she had not made the slightest semblance of a showing that she suffered any prejudice as a result of the violation of section 868. The record is completely devoid of any showing that appellant's case, or the preliminary hearing thereof, received any publicity whatsoever, either through the newspapers or any of the other news media. The question of prejudice in the impairment of appellant's asserted ‘right to a trial by an unbiased jury’ must be regarded as wholly moot in view of the fact that she unqualifiedly waived her right to a trial by jury at the opening of the trial, and before her counsel had made an reference to the matter involved in the ruling of which she now complains.

The situation in the case at bar is analogous to that presented in People v. Collins, 117 Cal.App.2d 175, 181, 255 P.2d 59. The appellant there asserted that he had been denied due process of law in that he had not been brought before a magistrate within the period prescribed by section 825 of the Penal Code. The court held that appellant's complaint was unavailing because he had failed to show that he was prejudiced by the delay. To the same effect, see People v. Boyden, 116 Cal.App.2d 278, 285–286, 253 P.2d 773; People v. McCrasky, 149 Cal.App.2d 630, 637, 309 P.2d 115. It is fundamental that error without prejudice affords no ground of reversal. Const. art. VI, § 4 1/2; Pen.Code, § 1258; People v. Collins, supra; People v. Boyden, supra; People v. McCrasky, supra; People v. Pearson, 151 Cal.App.2d 583, 585, 311 P.2d 927.

Affirmed.

HERNDON, Justice.

FOX, P. J., and ASHBURN, J., concur.