Other Cases Affecting Children

In re Francisco M. (2001) 86 Cal.App.4th 1061[103 Cal.Rptr.2d 794]. Court of Appeal, Second District, Division 5.

The superior court detained both a 17-year-old and a 15-year-old who had been declared material witnesses in a pending criminal trial in a case in which the defendant allegedly killed a person and attempted murder of the 17-year-old. The victim was driving a car; the 17-year-old was a passenger in the car and witnessed the shooting. The People theorized that the defendant belonged to a rival gang of the gang to which 17-year-old and the victim belonged. The 17-year- old was subpoenaed as a witness for the preliminary hearing and was presented in court handcuffed because he did not want to testify. The 17-year-old testified, but afterward he indicated that he would not come to court if subpoenaed for the trial, and that he feared for his life if he testified in court. As the trial date approached, the People filed an ex parte motion to have the 17-year-old detained for the trial. The motion was granted, and the youth was produced in custody the next day. The superior court determined that the youth fell within the provisions of Penal Code section 1332(a) (relating to material witnesses). The superior court set bail at $100,000 and returned the youth to custody. The commitment order was reviewed by another judge pursuant to section 1332(c), and at the statutory 10-day review, the commitment order was upheld. A section 1332 detention motion seeking the detention of the 15-year-old, who was also a member of the victim's gang, was also filed. The superior court ordered that a subpoena be issued and that the youth be brought to court for a hearing on bail. In court, the youth stated that he would not appear and indicated that he feared harm to himself and his family if he testified in the case. After the court held a section 1332 proceeding, the 15-year-old was determined to be a material witness in the pending criminal trial, and bail was set at $100,000. The two youths filed petitions for writ of habeus corpus, arguing that their continued detention violated article I, section 10 of the California Constitution, which provides that witnesses may not be unreasonably detained.

The Court of Appeal concluded that Penal Code section 1332 is constitutional; however, procedural safeguards must ensure that the interests of the state and the witnesses may be adequately heard and protected. The appellate court determined that section 1332, on its face, does not violate article I, section 10 of the California Constitution. The incarceration of witnesses is permitted if the witness refuses or is unable to post bond as set by the court. The appellate court noted that the validity of material witness statutes under the federal Constitution has long been accepted. The appellate court determined that it was not necessary for the trial court to seek a written undertaking of the witness before ordering the witness's bail or detention. The appellate court stated that, on a proper showing that the witness will not appear unless security is required, the court is empowered to (1) require the witness to submit a written undertaking in which he or she promises to appear and testify and further promises to forfeit security should he or she fail to appear; (2) set a reasonable bail amount as the required security; and (3) detain the witness if he or she refuses to enter such an undertaking. The appellate court stated that no on-the-record exchange or formal process to seek a written undertaking is required, and that the failure to post bail is implicitly deemed a refusal to enter into the undertaking.

The appellate court stated that the detention of witnesses is not to punish them for recalcitrance but rather to secure their attendance. The witness's right not to be unreasonably detained requires certain procedural safeguards allowing his or her interests to be heard in conjunction with the state's interests. Under section 1332(a), the court should consider the following, though the list is not exhaustive: (1) the nature of the charges in the underlying criminal prosecution; (2) the nature of the witness's proposed testimony; (3) the length of the proposed detention; (4) the evidence relevant to whether the witness will or will not appear and testify; (5) the age and maturity of the witness; (6) the harm to the witness and his family flowing from incarceration; (7) the witness's financial resources; (8) the circumstances of any continuance of the underlying prosecution that will prolong the prosecution; and (9) whether steps short of incarceration are feasible and adequate to protect the interests of the prosecution, the witness, and the defendant in the underlying prosecution.

In this case, the appellate court determined that the immediate release of the youth was not warranted. In response to a suggestion by the 15-year-old at oral argument, the appellate court decided to remand the case to the superior court to conduct hearings so that the youths may be heard. The hearings will address the question of whether the youths should remain in custody in lieu of security and will be consistent with the appellate court's expressed views in this opinion.