People v. Griffin

McMURRAY, J. pro tem.

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This is an appeal from judgment and order denying new trial by a defendant who was convicted of a violation of section 702 of the Welfare and Institutions Code which at that time was the section governing the offense of contributing to the delinquency of a minor, he having stood trial before a jury on an information charging a violation of Penal Code section 288. On this appeal appellant urges two main points: first, that his commitment for trial in the superior court was illegal because the committing magistrate allowed the investigating officer to remain in court during the testimony of the prosecuting witness at the preliminary hearing, he contending in this respect that a request had been made by both counsel that the courtroom

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be cleared; and second, that appellant’s right to appear in person or with counsel at all stages of the trial was denied since appellant did not participate in a conference held in chambers during the trial at which the instructions to be given to the jury were considered and discussed. Appellant contends that before this conference was held he had in fact discharged his attorney and that he was therefore without representation at that stage of the trial immediately preceding argument to the jury.

The first contention of appellant is grounded upon the transcript of the proceedings at the preliminary examination where it appears that after counsel had approached the bench the following proceedings took place: ‘ The Court : Yes. This is a preliminary hearing which shouldn’t take a long time. However, the nature of this is such that

Counsel have stipulated and request that the courtroom he cleared during the taking of the testimony of the child,

. . . Therefore, everyone will remain outside of the courtroom. [Emphasis added.]

“Her mother may remain and also the officer in charge of the investigation.

“The defendant, of course, and his Counsel will remain in the courtroom but the rest of you people will be asked to step out into the hall.

“Mr. Benson, you may call your first witness. ’ ’

While it is mandatory, under section 868 of the Penal Code, that the magistrate “must also, upon the request of the defendant, exclude from the examination every person except his clerk,. court reporter and bailiff, the prosecutor and his counsel, the Attorney General, the district attorney of the county, the defendant and his counsel, and the officer having the defendant in custody; provided, however, that when the prosecuting witness is a female she shall be entitled at all times to the attendance of a person of her own sex” and failure to exclude all persons except those enumerated in the section can constitute reversible error as a deprivation of a substantial right to a fair trial