McDaniel v. Superior Court

California Court of Appeal Feb 25, 1976 No. Civ. 14742Published

Before: Cologne

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Holding. The court held that a magistrate's restriction of defense examination of an eyewitness at a preliminary hearing on the grounds that it constituted improper discovery deprived the defendants of a substantial right.

Issues

Whether a magistrate may restrict defense examination of an eyewitness at a preliminary hearing on the basis that the questioning constitutes discovery.
Whether the undue restriction of defense examination of an eyewitness at a preliminary hearing deprives a defendant of a substantial right.

Disposition. Peremptory writ of prohibition issued.

Quotations verified verbatim against the opinion

“Jennings v. Superior Court, supra, 66 Cal.2d 867, 880 holds a defendant at a preliminaiy hearing must be permitted, if he chooses, to elicit testimony or introduce evidence tending to overcome the prosecution’s case or establish an affirmative defense.”

“It is not a valid objection that examination of a witness may lead to the discoveiy of what the facts were. That is the veiy purpose of examining a witness.”

“Unduly restricting defense examination of him deprived defendants of a substantial right.”

Opinion

COLOGNE, J.

Defendants Derek A. McDaniel and Michael James Eubanks petition for a writ of prohibition (Pen. Code, § 999a) following denial of their motions to set aside an information. Defendants concede there is ample evidence to bind them over on the charge they committed an attempted robbery while armed with a dangerous weapon and did use a firearm (Pen. Code, §§ 664, 211 and 12022.5). Their contention is they were unduly restricted in their examination of a witness at their preliminary examination

(Jennings

Superior Court, 66

Cal.2d 867 [59 Cal.Rptr. 440, 428 P.2d 304]). We agree.

We need not detail the evidence showing defendants’ robbery of a patron in a massage parlor was interrupted by two police officers (one of whom was retired) who, while passing the parlor, saw what was happening and intervened.

Officer Carlson, the active member of the pair who witnessed the robbery attempt, was designated by the prosecution as the investigative officer when the defense moved to exclude witnesses at defendants’ preliminary hearing. The People did not call Officer Carlson to the stand, however.

[805]

After the People rested, the defense called Carlson as a witness. The People objected to questions concerning what Carlson had seen, done and heard on the ground defendants were merely seeking discoveiy and were not attempting to establish an affirmative defense. While early in the examination some objections were overruled, the court later restricted questioning and finally cut off the examination on the ground the defense was not entitled to discovery at the preliminary examination.

Jennings

Superior Court, supra, 66

Cal.2d 867, 880 holds a defendant at a preliminaiy hearing must be permitted, if he chooses, to elicit testimony or introduce evidence tending to overcome the prosecution’s case or establish an affirmative defense. It is not a valid objection that examination of a witness may lead to the discoveiy of what the facts were. That is the veiy purpose of examining a witness. If the questioning is not otherwise objectionable, the court should allow reasonable latitude in the defense questioning of an eyewitness at the preliminary hearing.

McDaniel v. Superior Court

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COLOGNE, J.

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