PEOPLE v. ROBINSON (1979)

Defendant appeals from a judgment after conviction of violations of Penal Code section 288 (lewd acts with a child) and 288a, subdivision (c) (oral copulation with a child). Trial was to the court alone.

The preliminary examination was held on July 13, 1977. Jean Ann was the six-year-old victim named in the charges. Her seven-year-old brother Charles and her mother Nancy F. testified for the People.

On the evening of June 10, 1977, Nancy went on an errand for 15 or 20 minutes and left defendant in her apartment with Jean Ann, Charles, and their three-year-old sister Amanda. Charles saw defendant perform certain acts with and upon Jean Ann which he described to the court at the preliminary examination.

James G. Wright, counsel for defendant, cross-examined both Charles and Nancy. After the People rested, he asked that Jean Ann be called as a witness. The following was said:

“MR. WRIGHT: I would like to call Jean Ann to see what, if anything, she has to say about this.

THE COURT: Mr. Wright, I know that you have a right to present witnesses at a preliminary hearing to establish an affirmative defense or to overcome any of the testimony presented by the prosecution, but you don't have the right to take depositions or use a witness for discovery.

If you make me an offer of proof as to what you intend to establish, I'll be very happy to allow you to call this witness.

If you're going on a fishing expedition, I won't.

MR. WRIGHT: I think, your Honor, that I have heretofore referred to the sheriff's reports and it's been objected to.

I can, if necessary, subpoena the officers to lay the foundation. But the officers' reports do not refer to any incident involving the bathroom and, in my reading, refer to no direct incidents of oral sex. They refer to other things, but not to that.

I wanted to ask the little girl what she told the officers, because their reports do not say the things which have been said here both by the mother and by the brother.

The brother has already, at least a little, demonstrated that he doesn't quite know what went on and what didn't go on, with some of his statements, and he doesn't quite know what telling all the truth is.

I would think that that raises some doubt right there. I'd like to call her to see what the heck she says and see if in fact she says those things happened, because the brother has indicated an ability to fabricate already.

THE COURT: What you've indicated are conclusions. Would you make me an offer of proof as to factually what this witness will testify to, if you know?

MR. WRIGHT: I'm not in a position to make that. She might testify to nothing. Apparently, Mr. Mock's feeling is that she wouldn't say anything. I don't know.

MR. MOCK [the Deputy District Attorney]: Your Honor, I would simply point out that I certainly have not called any police officers in this matter, and impeachment of this police report is a matter unrelated to the proof offered by the prosecution at this particular point.

Therefore, the whole point of bringing in the little girl in a matter that is traumatic, at the least, is—seems to me not one of the areas where the law allows defense witnesses at this stage of the proceedings.

MR. WRIGHT: If the issue were impeachment of the police reports, I would be in agreement with you, Mr. Mock.

The issue is the veracity of the statements of the little boy, since those are the only ones we have at the moment, and since the statements which the little girl—by records and hearsay, of course—gave do not agree with what the little boy said.

THE COURT: Anything else, gentlemen?

MR. MOCK: No.

THE COURT: Mr. Wright, since you can't give me a factual offer of proof, it appears to me that you're going on a fishing expedition, trying to use my court for discovery purposes; and I don't think that's quite right at the preliminary hearing stage.

I will not allow you to call this particular person as a witness.”

Defendant contends it was reversible error per se for the trial court to deny his Penal Code section 995 motion to dismiss the information. He claims that impairment of his right to call and examine a defense witness at the preliminary examination (Pen.Code, § 866) voided the later judgment. The People urge us to hold that error, if any, was cured when the trial court later found at trial that Jean Ann was too immature to be a competent witness. (See People v. Neal (1942) 53 Cal.App.2d 379, 127 P.2d 996.)

While the People's argument is not without merit, we view the problem somewhat differently. In actuality, defendant is asking us to declare that he had an absolute right to place a six-year-old girl on the witness stand, to testify regarding sexual activity, with no reasonable anticipation that her testimony would be helpful, or even meaningful.

At preliminary examination, a defendant has the absolute right to elicit testimony or introduce evidence tending to overcome the prosecution's case or to establish an affirmative defense. (Jennings v. Superior Court (1967) 66 Cal.2d 867, 880, 59 Cal.Rptr. 440, 428 P.2d 304.) Such was not the case here however, as is unmistakably demonstrated by the quoted proceedings. Possessed of all discovery rights (defendant does not claim that he was denied prehearing discovery, including the right to interview Jean Ann), he did not undertake to elicit testimony or introduce evidence in his defense; he merely sought to learn what Jean Ann knew (“to see what the heck she says”), i. e., to pursue discovery. Discovery is often an incidental benefit of a preliminary hearing for a defendant (Witkin, Cal.Criminal Procedure (1963) Proceedings Before Trial, § 132, p. 128), but it is not error for a magistrate to refuse to turn a preliminary hearing into a discovery session. (People v. Superior Court (Simmons) (1968) 264 Cal.App.2d 694, 700, 70 Cal.Rptr. 480.)

The purpose of a preliminary hearing is to establish that a public offense has been committed and sufficient cause to believe the defendant is guilty of committing it. (Pen.Code, § 872.) If the evidence so indicates, the defendant may be held to answer even if the offense shown is not the one charged in the complaint. (People v. Foster (1926) 198 Cal. 112, 121, 243 P. 667.) Defendant's concern with a possible variance between police reports and testimony at the hearing was not a matter affecting the validity of the hearing, whose purpose was sufficiently satisfied by the evidence preceding the effort to call Jean Ann. Under the circumstances, the magistrate's concern for the child's emotional security was entirely appropriate. A court has the discretion and the duty to provide protection for witnesses whose physical safety is threatened (People v. Chambers (1937) 22 Cal.App.2d 687, 72 P.2d 746); the emotional integrity of a very young child and victim, whose informational value is speculative, is worthy of no less concern.

Courts have statutory power to control the behavior of anyone connected with judicial proceedings in furtherance of justice. (Code Civ.Proc., § 128.) There are also implied powers which enable a court to conform proceedings to the spirit of the law. (Code Civ.Proc., § 187.) While the term “court” does not always embrace proceedings before a magistrate (see People v. Peters (1978) 21 Cal.3d 749, 147 Cal.Rptr. 646, 581 P.2d 651), the magistrate in this case acted well within his discretionary powers in protecting Jean Ann. It was not at all unreasonable for him to request an offer of proof, and by this method to accord defendant his full constitutional protections while at the same time protecting the child.

The judgment is affirmed.

PARAS, Associate Justice.

REGAN, Acting P. J., and EVANS, J., concur.