People v. Daggett (1988)

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[Crim. A. No. 82307. Appellate Department, Superior Court, Sacramento. September 21, 1988.]

THE PEOPLE, Plaintiff and Respondent, v. GILBERT DAGGETT, Defendant and Appellant

(Opinion by Boskovich, P. J., with Davis, J., concurring. Separate dissenting opinion by Marvin, J.)

COUNSEL

Gilbert Daggett, in pro. per., for Defendant and Appellant.

John Dougherty, District Attorney, Douglas Benham and Fran Meyer, Deputy District Attorneys, for Plaintiff and Respondent.

OPINION

BOSKOVICH, P. J.

Appellant was cited for two infractions. He made a series of pretrial motions challenging the court's jurisdiction. Before trial, the court addressed each of the appellant's 18 pretrial motions and requests. The court denied the jurisdictional challenges and granted motions "preserving [defendant's] constitutional rights." The court expressly stated it was neutral and not acting in a prosecutorial capacity. There was no representative from the district attorney's office present at trial. The sole issue considered on appeal is whether the absence of the district attorney deprived appellant of a fair and impartial tribunal.

At trial, the arresting officer testified. The court engaged in some questioning of the officer after he had stated the basic facts of the offenses in narrative form. Appellant was permitted to fully cross-examine the officer on all defense theories. The officer stated he was not the prosecutor, only a witness. Appellant called witnesses and testified in his own behalf.

[1] It is settled that there is no due process question raised by the absence of the district attorney at infraction trials. (People v. Carlucci (1979) 23 Cal. 3d 249 [152 Cal. Rptr. 439, 590 P.2d 15]). This court requested an additional briefing on the issue of whether Government Code sections 100 and 26500 required the district attorney to be present at infraction trials. The specific question of whether there is a statutory requirement that the district attorney be present appears to be one of first impression.

Since the late 1800's the evolution of section 26500 and its predecessors points to a constant expansion of the duties of the district attorney. The [206 Cal. App. 3d Supp. 4] inference arises that it is the duty of the district attorney to prosecute all forms of public offenses in all courts. (12 Ops.Cal.Atty.Gen. 302 (1948).)

Prior to 1980, Government Code section 26500 read: "The district attorney is the public prosecutor. [par;] He shall attend the court and conduct on behalf of the people all prosecutions for public offenses."

In 1980, this section was amended along with Penal Code sections 853.6, 853.6a and 853.9 to require peace officers to file the duplicate copy of notices to appear with the prosecuting attorney rather than the court. [2] The purpose of the amendments was to allow the prosecuting attorney to make decisions, traditionally within its discretion, whether to pursue prosecution.

To this end, the second paragraph of section 26500 was amended to read: "The public prosecutor shall attend the courts, and within his or her discretion shall initiate and conduct on behalf of the people all prosecutions for public offenses." (Italics added.) The overall purpose of the bill fn. 1 would seem to support the view that the Legislature intended to vest discretion in the prosecuting attorney only in the initiation of prosecution, not in its conduct.

[3] Where, as here, the language of a statute is ambiguous, the court may look to sources other than the plain words of the statute to determine its meaning. (People v. Knowles (1950) 35 Cal. 2d 175, 182 [217 P.2d 1]). [4] In this case, respondent urges the court to consider the bill analysis for the Assembly Committee on Criminal Justice. The analysis is an extrinsic aid entitled to some weight. (In re Vicki H. (1979) 99 Cal. App. 3d 484, 495 [160 Cal.Rptr. 294]) [5] In construing a statute, the court may also assess historical context and public policy concerns. (People v. Knowles, supra, at p. 182; In re Marriage of Bouquet (1976) 16 Cal. 3d 583, 587 [128 Cal. Rptr. 427, 546 P.2d 1371].)

Applying these principles, it is apparent that the question of the wording of the amendment to the second paragraph of Government Code section 26500 was presented to the Legislature, which declined to revise the existing provision. fn. 2 Further, the amendments postdated the California Supreme [206 Cal. App. 3d Supp. 5] Court's decision in Carlucci, supra, 23 Cal. 3d 249 which discussed at some length the public policy reasons supporting its decision not to require the district attorney's presence at infraction trials.

[6] Certainly, it has always been the case that financial considerations have played a part in the prosecuting attorney's decisions to investigate and prosecute crimes. (Taliaferro v. Locke (1960) 182 Cal. App. 2d 752, 755-756 [6 Cal.Rptr. 813]). It is not unreasonable to extend recognition of the realities of present-day funding concerns to encompass discretion in appearing in court to conduct prosecutions. We therefore hold that Government Code section 26500 in its present form does not require the prosecuting attorney to be present at infraction trials.

[7] We concur with the California Supreme Court in cautioning trial courts to "refrain from advocacy" (People v. Carlucci, supra, 23 Cal.3d at p. 258) in trials where the district attorney is absent, to avoid impropriety or the appearance of impropriety. (Code of Jud. Conduct, canon 2.) The determination of whether a violation of judicial canons and the defendant's right to a fair and impartial trial has occurred is dependent upon the facts of the case, and, as suggested by the court in Carlucci, must be made on a case-by-case basis.

[8] In this case, the facts do not establish that the court was anything but fair and impartial to appellant both in consideration of his multiple motions and in ruling on his many objections. There is no indication that the court took the part of the prosecution. We conclude appellant was not denied a fair and impartial trial.

Appellant's numerous remaining contentions are lacking in merit and deserve no further discussion. The judgment of the trial court is affirmed.

Davis, J., concurred.

MARVIN, J.

I dissent. I do not quarrel with the district attorney's discretion as to whether or not to initiate prosecutions of public offenses, but once a case has been initiated, he should complete the prosecution. Otherwise, there is the inescapable conclusion that the court is, or at least appears to be, both the prosecutor and the court, rather than being impartial. The people of this county have fought hard against a police state. Their success should not be erased by elimination of an adversary trial. [206 Cal. App. 3d Supp. 6]

Government Code section 26500 states: "The district attorney is the public prosecutor, except as otherwise provided by law. [par;] The public prosecutor shall attend the courts and within his or her discretion shall initiate and conduct on behalf of the people all prosecutions for public offenses." The term "public offenses" includes infractions. (Pen. Code, §§ 15, 16.)

The district attorney seeks to justify his position with a committee report for the Assembly Committee on Criminal Justice. Assuming arguendo that it is proper to even consider such a report, it is quite clear that this is an interpretation by such committee, it is not binding upon the courts, particularly where such interpretation is illogical and does not address the concerns indicated in this opinion. The logical interpretation of the discretionary language in Government Code section 26500 is that it pertains only to the word "initiate" and not the word "conduct." After all, once filed, the power to dismiss a case passes from the prosecutor to the court. (Pen. Code,§ 1385.)

The officer cannot "conduct" the prosecution, nor can the officer be considered the representative of the People. The officer here recognized that he was a witness, not the prosecutor. Otherwise, the officer would be practicing law without a license.

Other than the officer who appears as a witness, who decides to subpoena and call other witnesses on behalf of the People? The court? Witnesses for the prosecution, including any victims, are not parties, and the action is not brought in their interests as individuals or on their behalf. (People v. Municipal Court (1972) 27 Cal. App. 3d 193 [103 Cal. Rptr. 645].) The "People" are a body politic and can no more appear in propria persona than can a corporation.

While there is not any restriction upon courts asking appropriate questions of any witnesses, the nonappearance of the district attorney to conduct and prosecute the case can place the court in the position of advocating, or appearing to advocate, for the prosecution. The unilateral decision of the district attorney to transfer prosecution to the court raises serious ethical questions for the traffic judge because even the appearance of impropriety in the conduct of trials is prohibited. (Code of Jud. Conduct, canon 2; Fremont Indemnity Co. v. Workers' Comp. Appeals Bd. (1984) 153 Cal. App. 3d 965, 974 [200 Cal. Rptr. 762].)

The district attorney's argument that he should allocate his manpower and resources to the "prosecution of cases more serious than traffic infractions" will undoubtedly be less than an inspiration to the traffic judge. [206 Cal. App. 3d Supp. 7] Actually, traffic court is one of our most important venues. To a large part of our population, this will be their only contact with the justice system. They are certainly going to wonder what happened to the impartial, blind Miss Justice and the doctrine of separation of powers.

Moreover, the previous practice of allowing certified interns and new attorneys to conduct the prosecution of traffic cases eliminated all of these concerns and provided a training ground for prosecutors to become proficient in the prosecution of cases in all courts. Many renowned attorneys and judges had their humble beginnings there.

The dated authorities cited by the district attorney have not given full consideration of the reasons expressed herein. I would reverse and remand this case for retrial on this sole ground. All other grounds do not have merit.

FN 1. The Legislative Counsel's Digest of Senate Bill No. 1890 (4 Stats. 1980 (1979-1980 Reg. Sess.) Summary Dig., p. 344), states: "This bill would ... provide that such notice be filed with the prosecuting attorney .... [t]he prosecutor, within his or her discretion would initiate prosecution by filing the notice or a formal complaint with a magistrate. ..."

FN 2. Assembly Committee on Criminal Justice, Analysis of Senate Bill No. 1890, Comments, paragraph 4: "Are the changes in Section one [sic] of this bill necessary? This language appears to eliminate the existing mandate that the public prosecutor conduct all prosecutions for public offenses on behalf of the people and insert in it's [sic] stead discretionary provisions. Is this the intent? Different language should be drafted to accomplish the ostensible purpose of this provision without modifying the existing mandates (i.e. 'The public prosecutor shall attend the courts and conduct on behalf of the people all prosecutions for public offenses which, within his/her discretion, have been initiated'. ..."