Dustin

James C. Brazelton, District Attorney, and Rick Distaso, Deputy District Attorney, for Real Party in Interest.

In capital cases, appellate courts and legislatures have long recognized the compelling need for ensuring reliability in determining whether death is the appropriate punishment. The reason for this disparate treatment is obvious—the death penalty is qualitatively different even when compared to a life sentence. This fundamental principle undoubtedly explains why the California Legislature enacted Penal Code section 190.9, which requires in death penalty cases that a court reporter record and transcribe all proceedings.

In this death penalty case, the prosecutor takes the art of relying on technicalities to new heights, a practice often attributed to defense counsel. Terry Dale Dustin's case began as most cases do— with the filing of a complaint. However, due to the fact Dustin's trial counsel required surgery, the preliminary hearing was continued for approximately three months. Undaunted, the prosecutor decided to proceed by grand jury indictment, which went forward approximately one week after the continuance was granted. Relying on Penal Code sections…

In capital cases, appellate courts and legislatures have long recognized the compelling need for ensuring reliability in determining *1314 whether death is the appropriate punishment. The reason for this disparate treatment is obvious—the death penalty is qualitatively different even when compared to a life sentence. This fundamental principle undoubtedly explains why the California Legislature enacted Penal Code section 190.9, which requires in death penalty cases that a court reporter record and transcribe all proceedings.

In this death penalty case, the prosecutor takes the art of relying on technicalities to new heights, a practice often attributed to defense counsel. Terry Dale Dustin’s case began as most cases do—with the filing of a complaint. However, due to the fact Dustin’s trial counsel required surgery, the preliminary hearing was continued for approximately three months. Undaunted, the prosecutor decided to proceed by grand jury indictment, which went forward approximately one week after the continuance was granted. Relying on Penal Code sections 938 and 938.1 (which essentially require the transcription of only testimony in grand jury proceedings), and in…

I dissent.

I have no problem with the notion that a trial court has discretion to order disclosure of a transcription of portions of grand jury proceedings beyond the testimony given in such causes. (See People v. Superior Court (Moucha ourab) (2000) 78 Cal.App.4th 403, 428-429, 437 [ 92 Cal.Rptr.2d 829 ] (Mouchaourab).) I also recognize that, under California law, “a defendant has a due process right not to be indicted in the absence of a determination of probable cause by a grand jury acting independently and impartially in its protective role. [Citations.] An indicted defendant is entitled to enforce this right through means of a challenge under [Penal Code] section 995 to the probable cause determination underlying the indictment, based on the nature and extent of the evidence and the manner in which the proceedings were conducted by the district attorney. [Citations.]” (Mouchaourab, supra, 78 Cal.App.4th at pp. 424-425.) 1 While the better practice is to have a stenographic reporter transcribe the complete grand jury proceeding, however, nothing in the statutes or case authorities explicitly requires that a complete transcription be available.

The majority implicitly…