Dual Use Interpreters
Last summer a panel of justices on the Sixth District Court of Appeal issued a writ of mandate in a case I handled while in Santa Cruz. In their opinion, which was certified for publication, the panel directed the trial court in Santa Cruz to vacate its order denying my Penal Code section 995 motion to dismiss based on the trial court’s failure to provide my client with his own interpreter throughout preliminary examination over 13 days and enter a new order granting that motion and dismissing the case without prejudice. This was a special case and one you’ll like if you’re into things like the rule of law and due process.
The trial court proceedings went something like this: My client had been held to answer on charges of special circumstances murder, conspiracy to commit murder, and street terrorism after a preliminary examination at which he and his two codefendants were required to share a single Spanish-language interpreter during the presentation of evidence. Evidence was received for a combined 13 days. We later challenged the trial court’s holding order, arguing that the deprivation of an individual interpreter at the the preliminary hearing violated a substantial right and was thus structural error.
The panel mostly agreed, writing in their opinion that it was not aware of any California appellate decision which has addressed whether the denial of an individual interpreter at a preliminary examination is within the narrow category of errors which by its very nature is a violation of a substantial right or whether it is instead an error which a petitioner must show reasonably might have affected the outcome.
However they determined that they didn’t need to reach the issue of whether the failure to provide an individual interpreter for my client was a violation of a substantial right requiring reversal per se because, even reviewing for prejudice, the panel concluded that my client had established that this error was “not minor but ‘reasonably might have affected the outcome’ ” of the preliminary hearing.
What does all of this mean? It means that in the trial court, I was right and everyone else was wrong. This is not ‘Nam, this is court. There are rules.
*I didn’t handle the writ proceedings in the appellate court. I left Santa Cruz soon after the trial court denied my 995 (no, not because it denied my 995.) Santa Cruz Public Defender Heather Rogers handled the writ proceedings and clearly did a great job.
