Sherwood v. Superior Court

California Supreme Court May 8, 1979 No. L.A. 30850Published

Before: Mosk

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Holding. The court held that the petitioner was not entitled to a postindictment preliminary hearing because the rule established in Hawkins v. Superior Court was not retroactive to his case, and his additional challenges to the indictment were meritless.

Issues

Whether an indicted defendant is entitled to a postindictment preliminary hearing if they entered a plea before the Hawkins v. Superior Court decision became final.
Whether the district attorney violated the rule in Johnson v. Superior Court by withholding exculpatory evidence from the grand jury.
Whether the grand jury lacked jurisdiction to indict the petitioner while a felony complaint was pending against him.

Disposition. peremptory writ denied

Quotations verified verbatim against the opinion

“By its terms, therefore, its rule is inapplicable to petitioner, and the trial court did not err in denying his motion for a postindictment preliminary hearing.”

“A defendant seeking review of a ruling of the trial court by means of a petition for extraordinary writ must provide the appellate court with a record sufficient to permit such review.”

“The quoted constitutional language is merely descriptive of the two available methods of felony prosecution in California; it does not purport to prescribe the details of the procedures to be followed in either”

Opinion

MOSK, J.

— This is a petition for original writ of mandate to compel dismissal of an indictment or, in the alternative, to order a postindictment preliminary hearing.

On June 30, 1973, a felony complaint was filed charging petitioner and two codefendants with conspiracy to sell narcotics and possession of marijuana for sale. All three defendants appeared in court and a preliminary hearing was set. On the date of the latter, however, petitioner failed to appear and the matter was continued. When petitioner again failed to appear, a bench warrant issued. On October 3, 1973, the' district attorney presented the case to the grand jury, which returned an indictment charging all three defendants with the above crimes. The two codefendants were arraigned, made an unsuccessful motion to suppress the evidence, pleaded guilty, and were sentenced. Petitioner remained at large.

[186]

On May 3, 1977 — almost four years after the complaint was filed — petitioner was apprehended on the bench warrant. He appeared and moved for a dismissal of the indictment or, in the alternative, for a postindictment preliminary hearing. At some time prior to May 19, 1977, the district attorney voluntarily obtained a dismissal of the complaint. On that date petitioner was arraigned on the indictment, and trial was set for July 18, 1977. On June 10, however, petitioner’s motion for dismissal or a preliminary hearing was heard and denied, and he sought review by writ of mandate. We granted an alternative writ and issued a stay.

The principal contention of the petition is, in effect, that an indicted defendant is denied equal protection of the laws under the California Constitution unless he is given the right to a postindictment preliminary hearing upon request. We so held in

Hawkins

Superior Court

(1978) 22 Cal.3d 584 [150 Cal.Rptr. 435, 586 P.2d 916]; but in view of the prior official reliance on contrary procedures, we declared (at p. 594) that the new rule “shall apply only ... to those indicted defendants who have not entered a plea at the time this opinion becomes final.”

Sherwood v. Superior Court

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MOSK, J.

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