McGonagill v. Superior Court

California Court of Appeal Mar 19, 1963 No. Civ. 7256Published

Before: Griffin

AI Brief

AI-generated · verify before citing

Holding. The court held that a defendant's motion to exclude all persons from a preliminary hearing under Penal Code section 868 is mandatory, and the failure to grant such a motion requires dismissal of the information regardless of a showing of prejudice.

Issues

Whether a motion to exclude all persons from a preliminary hearing under Penal Code section 868 was sufficiently specific to require the magistrate to exclude non-witnesses.
Whether the 15-day filing limitation in Penal Code section 999a applies to a motion to dismiss based on an illegal commitment.
Whether the failure to exclude persons from a preliminary hearing as required by statute is reversible error despite a lack of demonstrated prejudice.

Disposition. Writ granted; information dismissed and cause remanded.

Quotations verified verbatim against the opinion

“A showing of lack of prejudice is not authorized. Prejudice is presumed.”

GRIFFIN, P. J.

The petition seeks to estop the trial court from proceeding further with the trial on an information in which defendant was charged in two counts of issuing cheeks without sufficient funds in the bank to meet them.

[193]

The contention is that the petitioner has been improperly committed because the municipal court did not exclude all the persons required to be excluded from the courtroom at the time of the preliminary hearing. At the outset of the hearing, counsel for defendant (petitioner) moved: “I would like to make a motion, under Penal Code, section 868, that is, the exclusion of all persons from the courtroom that are not legally----”

The colloquy between the committing magistrate and counsel for defendant in this respect is as follows:

“The Court: All persons?

“Mr. Stewart: That are not legally entitled to be here. Yes, ma’am.

“The Court: Everyone is legally entitled to be here. All you can exclude are witnesses. All witnesses in this case—• who is to testify, Mr. McGirr ?

“The Court: All right, all other witnesses may leave the courtroom and just wait in the hall, wherever you can find a place out of the hearing of the Court.”

Prosecution witnesses were sworn. At the conclusion of the hearing the defense attorney said that he would like the record to show that Mr. James Evans was in the courtroom during the preliminary examination and that Mr. Montgomery remained in the courtroom during the testimony of the last witness. Then the following colloquy occurred:

“The Court: That is all right, after he has testified. I don’t know who Mr. Evans is. Who is Mr. Evans and why is it his presence is being noted?

“The Bailiff: He is a visitor in the courtroom.

“The Court: He is just a visitor. He isn’t a witness.

“Mr. Stewart: Yes, your Honor.

McGonagill v. Superior Court

AI Brief

GRIFFIN, P. J.

More from California Court of Appeal

Related research

AI Brief