(Cite as: 173 Ariz. 515, 844 P.2d 1165)
STATE of Arizona, ex rel. Frederick S. DEAN, City Attorney for the City of
The CITY COURT OF the CITY OF TUCSON, the Honorable Emery K. Labarge, a
Magistrate thereof; and Arlis SCRITCHFIELD, Real Party in Interest,
No. 2 CA-CV 91-0161.
Court of Appeals of Arizona,
Division 2, Department B.
April 30, 1992.
Review Denied Feb. 17, 1993. *
* Corcoron, J., of the Supreme Court, voted to grant review.
STATEMENT OF THE CASE
The state appeals from the superior court's denial of its petition for
special action in which it argued that the subpoena of the alleged victim to
a pretrial hearing violated the victim's rights pursuant to Ariz. Const.
art. II, § 2.1, commonly known as the Victims' Bill of Rights.
**1166 *516 QUESTIONS PRESENTED
Two issues are presented for review: Does this appeal present an issue
that is ripe for adjudication; and does the Victims' Bill of Rights
preclude the subpoena of the alleged victim to a pretrial hearing to
determine probable cause?
FACTS AND PROCEDURAL BACKGROUND
In November 1990 the appellee was cited for criminal damage in violation
of A.R.S. § 13-1602. Appellee moved to dismiss, alleging that the police
lacked probable cause to arrest. The magistrate court set the motion for
hearing, to which the appellee subpoenaed the alleged victim.
The state moved to quash, [FN1] maintaining that the Victims' Bill of
Rights precludes the subpoena of a victim to such a hearing. The magistrate
refused to quash the subpoena and the state sought special action relief in
the superior court. It denied relief, holding that "the defense has the
right to call the alleged victim at a probable cause hearing, and it is the
Magistrate's decision to terminate the probable cause hearing when the
Magistrate determines probable cause has been established." We have
jurisdiction of the state's appeal pursuant to A.R.S. § 12-2101(B).
FN1. The record establishes that the state has met the requirements of A.R.S.
§ 13-4437(C), which provides that "[a]t the request of the victim, the
prosecutor may assert any right to which the victim is entitled."
 We address first appellee's argument that this appeal does not present
an issue ripe for adjudication because the victim has not yet been
"interviewed." We disagree. The issue here is whether the Victims' Bill of
Rights prohibits the pretrial subpoena of a victim. Because a subpoena
legally compels both an appearance as well as testimony, we believe its
issuance to the alleged victim creates a justiciable case and controversy.
Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289, 99 S.Ct. 2301, 60
L.Ed.2d 895 (1979); Planned Parenthood Ass'n v. Nelson, 327 F.Supp. 1290
The primary issue in this appeal is whether the Victims' Bill of Rights
precludes the trial court from ordering the alleged victim to appear and
testify at a pretrial hearing on a motion to dismiss for lack of probable
cause. The state argues that the purpose of enacting the Victims' Bill of
Rights was to spare victims from all exposure to adversarial contact with
defendants or their attorneys until the time of trial and asserts that the
appellee is trying to circumvent this purpose by subpoenaing the alleged
victim to the pretrial hearing.
 In interpreting the scope of the Victims' Bill of Rights, we are required
to follow and apply the plain language of this new constitutional amendment.
Knapp v. Martone, 170 Ariz. 237, 239, 823 P.2d 685, 687 (1992). In so doing,
we find nothing in the amendment, either express or implied, which supports
the state's argument that victims have an absolute right not to be exposed to
contact with defendants or their attorneys until the time of trial.
 Additionally, we find nothing in the Victims' Rights Implementation Act,
A.R.S. §§ 13-4401 through 13-4437, which permits an alleged victim to refuse
to appear or testify at pretrial hearings. While the Act provides certain
safeguards to protect the alleged victim's privacy and to minimize the
victim's contacts with the defendant, the Act impliedly recognizes that a
victim may appear and testify at a proceeding other than a trial. A.R.S. §
13-4434(C) states that a "victim has a right at any court proceeding not to
testify regarding the victim's address, telephone numbers, place of employment
or other locating information...." While subsection (C) gives alleged victims
the right not to testify as to locating information, it does not give the
victim the absolute right not to testify at court proceedings. The Act does
not define "court proceeding." However, it does define "criminal proceeding"
to mean: "a hearing, argument or other matter scheduled by or held before a
trial court, but does not include a deposition, lineup, grand **1167 *517 jury
proceeding or other matter not held in the presence of the court." See A.R.S.
§ 13-4401(7). It is thus apparent our legislature understood that an alleged
victim might be called to court proceedings, such as here, but enunciated
limitations to protect the victim's privacy.
 The state also argues that the appellee's subpoena is simply a ruse
designed to circumvent the alleged victim's right to refuse discovery
requests. The state contends that the Victims' Bill of Rights guarantees the
alleged victim the right to refuse to be called to testify at the pending
pretrial hearing, relying for its conclusion on subsection (5) of the Victims'
Bill of Rights, which grants victims the right "[t]o refuse an interview,
deposition, or other discovery request by the defendant, the defendant's
attorney, or other person acting on behalf of the defendant." While
subsection (5) has been interpreted to preclude trial courts from ordering the
deposition of an alleged victim who has indicated an unwillingness to be
interviewed by the defendant, it has not been interpreted to permit victims to
refuse to testify at court proceedings. Knapp v. Martone, supra; State v.
O'Neil, 172 Ariz. 180, 836 P.2d 393 (Ct.App.1991); Day v. Superior Court, 170
Ariz. 215, 823 P.2d 82 (Ct.App.1991); State v. Warner, 168 Ariz. 261, 812
P.2d 1079 (App.1990).
 We are also unpersuaded by the state's argument that appellee is
violating the alleged victim's right to refuse an interview by using the
pretrial hearing as a subterfuge to "interview" the victim on the stand. In
State v. Bojorquez, 111 Ariz. 549, 535 P.2d 6 (1975), the court made it clear
that pretrial hearings are not to be used for purposes of discovery. Further,
while permitting the alleged victim to be subpoenaed to a pretrial hearing may
allow the appellee access to certain pretrial discovery not otherwise
obtainable, any examination of the witness will be conducted in the presence
of the court, which has the inherent power to ensure that the alleged victim
is afforded the rights guaranteed by the Victims' Bill of Rights.
While the Victims' Bill of Rights offers crime victims many protections, they
are not insulated from being required to appear and testify at court
proceedings such as the probable cause hearing in the instant case. A right
cannot be asserted that does not exist. By ordering the alleged victim to
appear, the magistrate observed the appellee's right to due process without
violating the victim's right to refuse an interview, deposition or other
discovery request. We affirm.
FERNANDEZ, P.J., and HATHAWAY, J., concur.
END OF DOCUMENT