People v. Prizant , 9 Cal. Rptr. 282 ( 1960 )

FORD, J.

I dissent. I do not believe that the reasoning of People v. Elliot, 54 Cal.2d 498 [6 Cal.Rptr. 753, 354 P.2d 225], compels the conclusion reached in the prevailing opinion in the present ease.

In the Elliot ease a newspaper reporter, a person having no connection with the case other than as a member of the public, was permitted to be in the courtroom during the preliminary examination despite the motion of the defendant made pursuant to section 868 of the Penal Code. The Supreme Court held that there had been a denial of a substantial right of the defendant. The court stated (p. 504) : “One 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. . . . This right may be substantially impaired if the protection afforded by section 868 is denied.” The court held that the conviction could not be saved by article VI, section 4%, of the California Constitution because “When a defendant has been denied a fair trial prejudice must be presumed.” (P. 506.)

In the present ease, the person permitted to remain in the courtroom was not a stranger to the proceeding but “the investigating officer,” a person directly concerned therewith. It is, of course, obvious that in a county having a great volume of criminal cases the district attorney or a deputy cannot become fully cognizant, in advance of the preliminary examination, of all of the factual details of each case which he must present before the magistrate. Nor can he personally prepare for every uncertainty or turn of evidence that may occur during the presentation of the case at the preliminary examination. The assistance of the officer who investigated the case is just as essential at that time as it is at the time of the trial in the superior court. With respect to such assistance at the trial, in People v. Boyden, 116 Cal.App.2d 278, at pages 283-284 [253 P.2d 773], Mr. Justice White said: “It has long been the general practice to permit some officer, active in the prosecution of the ease, to remain for the purpose of advising the district attorney as to the facts, the interest and character of the witnesses, etc.” Again, in People v. Chapman, 93 Cal.App.2d 365, at page 374 [209 P.2d 121], it is stated: “It is the common and usual practice that at least one peace official may remain during the presentation of evidence during the entire case.” (See also People v. Foster, 48 Cal.App. 551, 554 [192 P. 142].)

Merely because a person who is a stranger to the proceeding is clearly within the exclusionary provision of the code section, as in the Elliot case, the conclusion does not necessarily follow therefrom that, as a matter of statutory interpretation, a person who is assisting the district attorney is to be excluded. Guidance is given to us by section 4 of the Penal Code wherein it is stated that all the provisions of that code ‘ ‘ are to be construed according to the fair import of their terms, with a view to effect its objects and to promote justice.” (See People v. Black, 45 Cal.App.2d 87, 94 [113 P.2d 746].) As stated in People v. Villegas, 110 Cal.App.2d 354, at pages 357-358 [242 P.2d 657] : “A statute must be so construed as to make sense; to make every clause and phrase effective in deriving the legislative intent; and when the true purpose of the statute has been determined, it must be liberally construed in order to effectuate the purpose. The manifest reason and purpose of an act must not be sacrificed to a literal interpretation of its verbiage. When the legislative intent has been ascertained, it must be enforced as intended notwithstanding the derived meaning may be inconsistent with the strict letter of the statute as enacted.” (See also In re Clarke, 149 Cal.App.2d 802, 805 [309 P.2d 142] ; Select Base Materials, Inc. v. Board of Equalization, 51 Cal.2d 640, 645 [335 P.2d 672].)

It is clear that the objectives sought to be achieved by the particular section of the code are of prime consideration in its interpretation. (See Richfield Oil Corp. v. Crawford, 39 Cal.2d 729, 738 [249 P.2d 600].) That rule of interpretation was recognized in the Elliot case in the statement that one of the main purposes of section 868 is the assurance of “an impartial and unbiased jury by preventing dissemination of this testimony either by newspaper or other media prior to trial.” While such purpose is fostered by the exclusion of a stranger to the proceeding, it is not aided by the exclusion of the investigating officer any more than it would be by the exclusion of the person he assists, the district attorney. Underlying the determination of the Elliot case, and properly so, is the concept of due process insofar as the defendant is concerned. “As applied to a criminal trial, denial of due process is the failure to observe the fundamental fairness essential to the very concept of justice.” (Lisenba v. California, 314 U. S. 219, 236 [62 S.Ct. 280, 86 L.Ed. 166].) But fairness to a defendant does not require the crippling of the fair opportunity of the district attorney fully and fairly to present his case with the aid of an investigating officer in the task of marshalling the evidence.

In Kashevaroff v. Webb, 73 Cal.App.2d 177, at page 183 [166 P.2d 306], Mr. Justice Dooling stated: “Laws are made for the practical governance of men and it is axiomatic that that construction of a statute which appears to be reasonable is to be preferred.” As stated by Mr. Justice Peters in California Emp. etc. Com. v. Municipal Court, 62 Cal.App.2d 781, at page 785 [145 P.2d 361] : “The provisions of the Constitution, or of a statute, should receive a practical, rather than a technical, construction [citation]; one leading to a wise policy rather than of ‘mischief or absurdity. ’ ”

Applying the applicable rules of interpretation to the problem here presented, I cannot reach the conclusion that it was the intent of the Legislature in enacting section 868 of the Penal Code to cause the exclusion from the preliminary examination of the investigating officer whose function is to assist the district attorney properly to perform his duty. (Cf. People v. Lem Deo, 132 Cal. 199, 201 [64 P. 265].)¹ Certainly, it would hardly have been maintained prior to the 1957 amendment of section 868 (which added to the persons excepted from exclusion “court reporter and bailiff”) that the presence of the court reporter or of the bailiff—persons necessary to the proper functioning of the court—over the objection of the defendant would result in the same disposition as was reached in the Elliot case.

For the reasons stated, I cannot join in the prevailing opinion.

A petition for a rehearing was denied December 8, 1960. Ford, J., was of the opinion that the petition should be granted. Respondent’s petition for a hearing by the Supreme Court was denied January 18, 1961.

1 In People v. Lem Deo, the defendant sought to set aside an indictment upon the ground that a person not mentioned in section 925 of the Penal Code, as it then existed, was permitted to be present during the session of the grand jury when the charge against the defendant was under consideration. The person involved was an interpreter whose presence was necessary because of two witnesses who could not speak or understand the English language. The Supreme Court said, at page 201: “The court did not err in denying the motion on the ground above stated. Waiving the absurdity of the proposition that the legislature intended that a grand jury should be precluded from inquiring into a public offense where the investigation made necessary the hearing of the testimony of witnesses who spoke only a foreign language, it is evident that the word ‘witnesses,’ used in section 925, includes interpreters.’’