MUNICIPAL COURT FOR THE MOUNT SAN JACINTO JUDICIAL DISTRICT OF RIVERSIDE COUNTY v. PEOPLE

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Court of Appeal, Fourth District, Division 2, California.

The MUNICIPAL COURT FOR THE MOUNT SAN JACINTO JUDICIAL DISTRICT OF RIVERSIDE COUNTY, et al., Petitioners, v. The SUPERIOR COURT of San Bernardino County, Respondent. The PEOPLE, Real Party in Interest.

No. E013824.

Decided: April 26, 1994

Gibson, Dunn & Crutcher, Richard Chernick, Nanette C. Canepa, and Robert H. Wright, Los Angeles, for petitioners. No appearance for respondent. Grover Trask, Dist. Atty., and Creg G. Datig, Supervising Deputy Dist. Atty., for real party in interest.

OPINION

INTRODUCTION

The People of the State of California (People) through its representative, the District Attorney, chooses not to be present at a misdemeanor arraignment proceeding being conducted by a particular court commissioner, during which proceeding a defendant enters a plea of guilty or no contest (guilty plea), and after which the sentencing proceeding immediately follows before the same commissioner presiding.   Further the People, through its representative the District Attorney, had previously advised the presiding judge of that court and the commissioner that it would not consent to that commissioner acting as a temporary judge for sentencing or placing a convicted misdemeanant on probation (sentence proceedings).   Under such circumstances, is the consent of the defendant, who is present personally or by counsel at the sentencing proceeding, sufficient in itself to empower that commissioner to act as a temporary judge for the purposes of sentencing?

We hold that the absence of the District Attorney at the sentencing proceeding does not constitute either a forfeiture of the People's status as a party litigant at that proceeding, or an implied stipulation that the commissioner may so act as a temporary judge, and that the commissioner may not exercise such judicial powers as a temporary judge unless the People expressly stipulate that the commissioner may do so.1

I

PROCEDURAL BACKGROUND

We are called upon to review a judgment rendered by the superior court upon a petition for writ of prohibition filed by the District Attorney of Riverside County on behalf of the People, against Judge Curtis Hinman, Presiding Judge of the municipal courts of the Mount San Jacinto and Three Lakes Judicial Districts of Riverside County, and Commissioner Ann Loree of the Three Lakes Judicial District.   In its petition, the People sought to have Judge Hinman ordered to stop assigning Commissioner Loree to perform misdemeanor sentencings without the consent of “all parties,” and to have Commissioner Loree prohibited from conducting such sentencings without consent from “all parties.”   The peremptory writ is directed at both Judge Hinman in his capacity as Presiding Judge of the two municipal courts, and Commissioner Loree as Commissioner of the Three Lakes Municipal Court, and provides that “you” are “hereby directed that Commissioner Ann Loree shall not sentence any misdemeanor defendant without a written stipulation by all parties that she may act as a temporary judge, or except where both parties are present and, by their conduct, impliedly or tacitly consent to the commissioner acting as a temporary judge.” 2

Judge Hinman and Commissioner Loree, joined by “Mount San Jacinto Judicial District,” “Three Lakes Judicial District,” and one James Kahle, then filed both a petition for writ of supersedeas and petition for writ of mandate/prohibition with this court, naming the San Bernardino Superior Court as respondent and the People as real party in interest.   The People responded with both a demurrer and answer.   The petitioners replied with a traverse.  (For easy reference, now that the parties have all been mentioned, we will refer to petitioner below (nominally “The People”) as the District Attorney, and to respondents below sometimes by individual names and judicial capacities and sometimes generally as “the Court.”)

We denied supersedeas and also summarily denied the petition insofar as it related to an order, made after the trial court issued its ruling in the mandamus action, denying the Court's motion to disqualify the District Attorney from acting as counsel for the People.3  Our alternative writ is directed solely to the judgment ordering issuance of the writ of prohibition, which raises the issue of Commissioner Loree's power to act as a temporary judge under the circumstances of this case in misdemeanor sentencing proceedings.

II

FACTUAL BACKGROUND

Upon Ms. Ann Loree's appointment in 1992 as a municipal court commissioner (Gov.Code, § 74698), she was assigned to conduct arraignments and sentencing proceedings in criminal infractions and misdemeanor cases.   She was also appointed by the presiding judge of the court to act as a temporary judge regarding those matters in such cases requiring that the judicial officer be a temporary judge.   The District Attorney immediately adopted a policy of refusing to stipulate to her acting as a temporary judge in the misdemeanor sentencing proceedings which normally followed immediately after the commissioner's accepting plea(s) of guilty to misdemeanor charges at arraignment proceedings.   Thus, although Commissioner Loree, in conducting arraignments, was apparently allowed to accept a plea of guilty with respect to certain traffic infractions,4 without the stipulation of the District Attorney, she could not sentence these defendants and arguably she could not accept pleas of guilty in misdemeanor cases (see fn. 1).   Without question she could not sentence convicted misdemeanants without the District Attorney's consent.   This substantially reduced Commissioner Loree's usefulness in the assignment, and increased the inconvenience to defendants who, having appeared and pleaded guilty before her, were obliged to make a second appearance for sentencing by a judge or another commissioner to whom the District Attorney would stipulate could act as a temporary judge.

Rather than assign Commissioner Loree to other duties, the Court proposed to the District Attorney that:  (1) a deputy district attorney (deputy) be present at all arraignments conducted by Commissioner Loree, and (2) Commissioner Loree be permitted to accept guilty pleas to Vehicle Code violations if the defendant stipulated to the commissioner accepting his or her guilty plea and imposing sentence as a temporary judge.   She then would give the defendant an indicated sentence, at which time the deputy would decide whether or not to stipulate to her so sentencing defendant.   If the deputy did not stipulate, the commissioner would continue the sentencing proceeding and transfer the case to a judge for sentencing.

Concerning non-Vehicle Code misdemeanor violations, the court's proposal continued as follows:  (1) if the defendant indicated a guilty plea, the deputy would make an initial recommendation as to the proper sentence, and (2) if Commissioner Loree and the defendant agreed to it, the deputy and defendant would stipulate to Commissioner Loree acting as a temporary judge and she then would proceed to accept the guilty plea and sentence according to the recommendation.   However, if the defendant or the commissioner did not agree with the recommendation, a not guilty plea would be entered before the commissioner and she would set the case for a pretrial proceeding.

In conclusion Judge Hinman informed the District Attorney that if no deputy was present at the arraignment and sentencing proceedings, it would be “assumed that the People have willfully failed to appear, and that they waive their right to object.”   In this case, Commissioner Loree would proceed to accept guilty pleas and to sentence any defendant who stipulated to her acting as a temporary judge.

This proposal, which at the end of the letter became a court procedure effective six days later, was not acceptable to the District Attorney, who sent a responsive letter, referring to his earlier letter to Judge Hinman outlining his office's grievances against Commissioner Loree.   He expressly stated that his deputies would not stipulate to Commissioner Loree hearing any matter “involving my office as a party.” 5  He complained that Judge Hinman's proposal that a deputy be present at all arraignments would require him to increase his staff at a time when he planned to reduce staff, not increase it.

In his petition in the trial court, the District Attorney alleged that it had been the practice of his office for over 20 years not to send a deputy to misdemeanor arraignments in the Three Lakes Judicial District, where Commissioner Loree sits.   This statement was not refuted.   Presumably aware of the long standing practice of the District Attorney not supplying a deputy for arraignments, and with knowledge of the People's objection to Commissioner Loree acting as a temporary judge for sentencing misdemeanants, the Court did put into effect its proposed policy based on the assumption that the physical absence of a deputy at arraignment and sentencing was a wilful failure of the People “to appear” and that such absence “waive[d]” the right of the People to object to Commissioner Loree so acting as a temporary judge.   Commissioner Loree proceeded to impose sentence on any misdemeanant who pleaded guilty and consented to her sentencing him or her as a temporary judge.

The battle was thus joined between the Court which wished to establish its power not only to appoint a commissioner of its choice, but also in accordance with its needs and convenience to assign her to exercise greater judicial authority than allowed in the performance of subordinate judicial duties, and a District Attorney's office desirous of enforcing its right not to have misdemeanor sentences imposed by a particular commissioner in whom (for whatever reasons) it had no confidence.   The District Attorney's petition in the trial court was the next step, followed by the Court's petition to this court.

III

DISCUSSIONA. Reviewability by an Extraordinary Relief Proceeding ***

B. Proper Party Petitioners

Shortly after the Court filed its petition in this court, the District Attorney, by letter brief, asked that we dismiss the matters out of hand based on lack of standing of the petitioners.   Later, the District Attorney filed in this court a demurrer to the Court's petition asserting, among other things, that petitioner James Kahle (Kahle) lacks standing as a party petitioner.

1. Petitioner Kahle ****

2. Petitioners Judicial Districts, Judge Hinman and Commissioner Loree

 The District Attorney then requested that the petition be dismissed as to the Judicial Districts and the individual petitioners, Judge Hinman and Commissioner Loree, sued in their judicial capacities (sometimes referred to collectively as individual petitioners), relying on the recently-decided case of Municipal Court v. Superior Court (Gonzalez) (1993) 5 Cal.4th 1126, 22 Cal.Rptr.2d 504, 857 P.2d 325.   In that case, an individual defendant filed a petition for writ of habeas corpus in the superior court, challenging his detention after a probable-cause hearing 7 held by a municipal court commissioner rather than a judge.   The superior court granted his petition, and the People did not seek review.   However, the municipal court then filed a petition for writ of mandate in the court of appeal, naming the superior court as respondent and seeking to establish that its procedure of assigning probable cause hearings to a commissioner was permissible.

The Supreme Court held simply that the municipal court was not a party beneficially interested in the proceeding, and that if the immediate parties to litigation did not seek review of a ruling, the court could not do so even if its own procedures were affected.  (5 Cal.4th at pp. 1129–1132, 22 Cal.Rptr.2d 504, 857 P.2d 325;  see also Municipal Court v. Superior Court (Swenson) (1988) 202 Cal.App.3d 957, 961, 249 Cal.Rptr. 182.)

We find Gonzalez controlling only with respect to the Judicial District's purported appearance as party petitioners before this court—a status they did not hold below, as the record reflects that only Judge Hinman and Commissioner Loree were named respondents on the People's petition.8  We accept the direction of the Supreme Court in this respect, and we now grant the District Attorney's motion to dismiss and order the petition before us dismissed as to petitioners Judicial Districts.

However, the District Attorney also takes the position that the petition should be dismissed as to the individual petitioners.   We are intrigued by the posture of a litigant who sues named individuals, obtains a writ of prohibition directed expressly at the named individuals, and then argues that those individuals have no standing to seek review of the judgment in this court by extraordinary relief proceedings.

We have noted above that it is appropriate in some cases for a petition for writ of mandate to name a judge personally as a respondent.  (Calhoun v. Superior Court, supra.)   The Supreme Court itself, in a case not mentioned by the majority in Gonzalez but pertinently raised by Justice Kennard in her concurring and dissenting opinion, has dealt with an appeal by an individual judge (and the court in which she sat) from a judgment ordering her disqualification pursuant to Code of Civil Procedure section 170.6.  (Solberg v. Superior Court (1977) 19 Cal.3d 182, 190, 137 Cal.Rptr. 460, 561 P.2d 1148.)

This case is even stronger than that of a disqualified judge, who arguably should have no particular interest in whether or not he or she is allowed to decide issues in a particular case.   Here, the judgment and subsequent writ affects Commissioner Loree's ability to perform duties (other than subordinate judicial duties) which duties involve judicial tasks critical to the functioning of the court.   Such inability due to the writ may affect her continuing as a commissioner with the Court.   We believe that such an individually named judicial officer is a real party with a defensible interest in the case, and may seek review of a ruling which indirectly acts upon him or her personally.

 We also hold that the District Attorney is estopped to challenge standing by the named individuals, including Judge Hinman.  “Where a court has subject matter jurisdiction, a party's request for or consent to action beyond the court's statutory power may estop the party from complaining that the court's action exceeds its jurisdiction.”  (Adoption of Matthew B. (1991) 232 Cal.App.3d 1239, 1267, 284 Cal.Rptr. 18.)  “ ‘A litigant who has stipulated to a procedure in excess of jurisdiction may be estopped to question it when “To hold otherwise would permit the parties to trifle with the courts.”  [Citation omitted.]’ ”  (In re Griffin (1967) 67 Cal.2d 343, 348, 62 Cal.Rptr. 1, 431 P.2d 625, quoted in People v. Ellis (1987) 195 Cal.App.3d 334, 343, 240 Cal.Rptr. 708.)   We would be hard pressed to think of a better example of trifling with the courts than where a party voluntarily acts to obtain a judgment against individually named respondents in a mandamus proceeding in which the petitioner has deliberately failed to join a real, live, individual real party, e.g., a misdemeanant sentenced by Commissioner Loree, and then—while fully intending to retain the benefits of a favorable judgment—insists that the named respondents against whom the judgment and writ is directed have no standing to seek review.   As noted earlier, the judgment and writ explicitly include Judge Hinman and Commissioner Loree, and the writ explicitly prohibits certain conduct by Commissioner Loree.9  Consequently, there is no genuinely interested real party who might take up the issue on behalf of either individually named judicial officer.   And this is the District Attorney's doing.

At the hearing on the Court's motion to disqualify counsel, the participating deputy district attorney responded to the trial court's concerns about the absence of a true real party as follows:  “What the People were faced with, we could have taken a number of appeals, a number of writs, and subjected, again, pro per defendants who wanted nothing more than to come in at their first appearance and plead guilty to something and receive the standard sentence for their crime.   We saw no use and no good in the interest of justice to subject them to hiring lawyers to defend their convictions.   We would also have jeopardy problems․   So it seemed perfect that all we wanted was a single quick decision from a higher court as to what the law is.   The route we chose seemed to be the one that was best for all concerned.”

Now, having obtained a favorable “single quick decision” through a questionable procedural approach, the District Attorney attempts to bar his chosen respondents from resorting to a higher court to review the correctness of the decision.   We will not belabor the point further, but proceed to the merits.   The District Attorney's motion to dismiss the petition as to petitioners Judge Hinman and Commissioner Loree is denied.10

C. Commissioner Loree's Authority to Sentence Misdemeanants

 Article VI, § 21 of the state Constitution allows a qualified attorney (commonly, as here, an appointed court commissioner) to act as a temporary judge “in a cause” 11 “on stipulation of the parties litigant.”   Before a 1990 amendment (Stats.1990, c. 411), section 259, subdivision (e) of the Code of Civil Procedure provided in pertinent part that a court commissioner could act as a temporary judge “by written consent of the party appearing at the hearing where the action is either uncontested or the other party or parties are in default ․” The amendment altered the statute to permit a commissioner to act as a temporary judge “by written consent of an appearing party.”  (Emphasis supplied.)

At trial and here, the District Attorney argues, based on the legislative history, that this amendment was technical in nature and was not intended to change the rule that the stipulation of both or all parties appearing was necessary to authorize the commissioner to act as a temporary judge.   The trial court agreed that the amendment had no substantive effect, as do we.   However, we also disregard the amendment, even if it had such effect, for the more basic reason that the Legislature had no power to relax the constitutional requirements even if it did intend that the written stipulation of any one party litigant was sufficient.

 Legislative mandates or constructions cannot prevail over a clear constitutional provision.  (Playboy Enterprises, Inc. v. Superior Court (1984) 154 Cal.App.3d 14, 28, 201 Cal.Rptr. 207;  Molar v. Gates (1979) 98 Cal.App.3d 1, 24, 159 Cal.Rptr. 239.)   The California Constitution provides that a temporary judge may act only upon the stipulation of the parties litigant.   Even if it wished to do so, the Legislature could not authorize a commissioner to act as a temporary judge with the consent of a single party over the objection of other parties.

 We now reach the heart of the matter—the effect of the absence of a deputy at the misdemeanor sentencing proceedings on the power of the commissioner to sentence as a temporary judge.

In the seminal 12 case of Sarracino v. Superior Court, supra, 13 Cal.3d 1, 118 Cal.Rptr. 21, 529 P.2d 53, the Supreme Court construed “parties litigant,” as used in article VI, section 21, to exclude a party who is “in default” with respect to a proceeding.   In Sarracino, the party “defaulted” by failing to appear in response to a notice of motion with respect to an application for temporary child and spousal support, although he later appeared in both proceedings involved in the support claims—a dissolution action and an action for the support of an adult child.

In Lint v. Chisholm (1981) 121 Cal.App.3d 615, 621–622, 177 Cal.Rptr. 314, the same result for the same reasons was reached where the defendant had concededly maintained “party litigant” status through pretrial stages, but failed to appear at trial;  held, the person appointed to act as a temporary judge was qualified to so act upon the stipulation of the plaintiff who did appear.   Similar to Lint is Reisman v. Shahverdian (1984) 153 Cal.App.3d 1074, 1091–1093, 201 Cal.Rptr. 194, which held “party litigant” status unavailable to a defendant who (although active in the private arbitration proceedings preceding court action) failed to appear at the hearing on plaintiff's petition to confirm an arbitration award before a court commissioner whom plaintiff stipulated could act as a temporary judge at that proceeding.

The individual petitioners rely heavily upon Sarracino, and also cite Estate of Kent (1936) 6 Cal.2d 154, 162, 57 P.2d 901, which held that non-appearing heirs or legatees are not “parties litigant” whose stipulation to a temporary judge is required under the constitutional provision.   We do not find the latter case particularly apposite.   As the Kent court pointed out, in a probate proceeding—as in proceedings involving trusts—the matter is pressed by a representative party (the executor, administrator, or trustee) who acts on behalf of the beneficially interested parties largely as a matter of traditional administrative convenience.   If the consent of the numerous, and possibly widely-scattered, beneficiaries were necessary, a temporary judge would rarely be enabled to act—and other procedural or substantive steps would also be stymied if the beneficiaries were considered “parties.”   Similarly, in a certified class action, it would be completely impractical to adopt a rule that each class member had to agree to steps such as the stipulation to a temporary judge.

This case does not involve a party representative who, by custom or statute, acts on behalf of non-appearing real parties in interest;  Kent is therefore not controlling.13

Both Lint and Reisman note that the party who is deemed to have forfeited party litigant status for the subject proceeding had willfully been absent;  in Sarracino, it is inferable that the defendant's failure to appear was similarly deliberate.14  Another line of cases considers the problems which arise when a party does appear, but, for whatever reason, neither objects nor formally agrees to the court appointed person acting as a temporary judge.   It is now established that a party who participates in a proceeding by being personally present or by counsel with knowledge that it is being conducted by a commissioner (or other non-judge), and does not object, may be deemed to have consented to the temporary judge (sometimes referred to as a de facto or tantamount stipulation).  (In re Horton, supra, 54 Cal.3d at pp. 92–93, 284 Cal.Rptr. 305, 813 P.2d 1335;  In re Mark L. (1983) 34 Cal.3d 171, 178–179, 193 Cal.Rptr. 165, 666 P.2d 22;  cf. In re Frye (1983) 150 Cal.App.3d 407, 409, 197 Cal.Rptr. 755, holding that there could be no deemed consent where neither the party nor his attorney was aware that the presiding judicial officer was only a commissioner.)

It can therefore be argued either that the District Attorney's deliberate election to stay away from the misdemeanor sentencing proceedings before Commissioner Loree constituted a tantamount stipulation to Commissioner Loree acting as a temporary judge if the defendant expressly stipulated to her acting as a temporary judge, or that the wilful failure to personally appear and object, knowing that Commissioner Loree would be presiding at the sentencing, constituted a loss of its party litigant status for that proceeding and the commissioner had the authority to act as a temporary judge with the consent of the defendant.   In the circumstances of this case, neither position is tenable.

As noted above, in both Lint and Reisman the court was able to construe the defendants' absence from the subject proceedings as “willful,” with a distinctly pejorative overtone.   Furthermore, it is palpably true that, in a civil case, a defendant (or any party) who fails to appear either personally or by counsel at a hearing at which disputed substantive rights are in issue takes the risk of what may be serious adverse personal or financial consequences.   As a matter of common experience, it is known that a defendant does not knowingly default by failing to appear personally or by counsel at a civil trial or a hearing involving substantial rights unless he is either genuinely indifferent to the result or intends to obstruct the activity of the court.   Hence, there is nothing unfair about concluding that such a nonappearing party is not a “party litigant” for the purpose of the hearing or trial and holding him to the effect of a judgment rendered by a temporary judge, particularly when he “uses his willful absence from a proceeding as a technicality with which to challenge the power of that temporary judge.”  (Reisman v. Shahverdian, supra, 153 Cal.App.3d at p. 1093, 201 Cal.Rptr. 194.)

On the other hand, the realities of criminal procedure are quite different, at least in certain municipal and justice courts and with respect to certain offenses.   Many steps are uniformly routine and such matters as the sentencing disposition of minor offenses are commonly influenced by bail schedules adopted formally by the court.  (See e.g. Pen.Code, § 1269b, subds. (d) and (e), providing for the adoption of bail schedules.)

The District Attorney here has alleged, without contradiction, that misdemeanor arraignments at the courts in the Three Lakes Judicial District have not been staffed by a deputy for twenty years.   Such a continued practice cannot possibly be interpreted as reflecting indifference to the disposition of misdemeanor convictions in those courts by sentencing immediately after the arraignments;  rather, it obviously represents a balancing by the district attorney of the scarcity of office resources, i.e., deciding the priority of assigning a limited number of deputies to certain proceedings in the courts of Riverside County, against the likelihood that the judicial officer presiding at a misdemeanor sentencing proceedings will sentence in line with the District Attorney's general views as to the appropriate sentence range.15

Furthermore, and importantly here, the District Attorney had notified Judge Hinman, Presiding Judge of the Court that he will not stipulate to Commissioner Loree in any matter.16  It is clear from the record that the District Attorney's conduct does not raise a reasonable inference of a tantamount stipulation that Commissioner Loree act as a temporary judge to sentence misdemeanants immediately after they have pled guilty before her at arraignment.

Regarding the individual petitioners' contention that the People forfeited or lost its party litigant status at sentencing proceedings before Commissioner Loree, we agree with Justice Wiener, who, in his concurring opinion in Lint v. Chisholm, supra, pointed out that “․ there may be many reasons why a party ․ may prefer to absent himself from the courthouse.   The emoluments of a party litigant ․ should include the right to avoid the expense of appearing in court for the sole purpose of rejecting a tendered stipulation for the appointment of a temporary judge.”  (121 Cal.App.3d at p. 625, 177 Cal.Rptr. 314.)

Justice Wiener would have limited the forfeiture of “party litigant” status to those cases in which the absence was not only “willful” in the sense of “deliberate,” but also “not justifiable.”   In Lint, the party's absence was clearly not justifiable, and the issue was not squarely raised;  however, we note that Sarracino does not preclude the result recommended by Justice Wiener.

In this case, the individual petitioners have never proffered any reason why the District Attorney's long-established practice of not staffing the misdemeanor arraignments and immediately subsequent sentencing proceedings is either improper or causes any inconvenience to the court.   In the absence of such a showing, we find the People did not lose its status as a “party litigant” under the Constitutional provisions, particularly when the record establishes that the District Attorney's decision not to be present at the arraignment and sentencing proceedings was not willful, in the sense of unjustifiable.

It is undisputed that the District Attorney possesses the absolute right in any criminal proceeding not to stipulate to any person appointed to act as a temporary judge, and where he has made a clear and express objection to such appointed person, it is not necessary that the District Attorney take the onerous additional step of providing a deputy to reiterate these objections in each case in order to preclude that particular person from having the power to act as a temporary judge.

The District Attorney cannot be sanctioned or penalized for his refusal to stipulate to any person appointed to be a temporary judge.   In the context of peremptory challenges under Code of Civil Procedure section 170.6, the Supreme Court has stated that the potential for abuse does not vitiate the statute, and that even “blanket challenges” by section 170.6 motions must be tolerated in the interests of giving the statute its intended effect.   (Solberg v. Superior Court, supra, 19 Cal.3d at pp. 194–204, 137 Cal.Rptr. 460, 561 P.2d 1148;  see also McCartney v. Commission on Judicial Qualifications (1974) 12 Cal.3d 512, 538, 116 Cal.Rptr. 260, 526 P.2d 268.)   This approach applies even more strongly in the case of not stipulating to a temporary judge, whose power derives solely from the affirmative approval of the parties.   It is not for the individual petitioners—or this court—to speculate on the reasons for which the District Attorney declines to consent to Commissioner Loree acting as a temporary judge;  no reason need be given.

In summary, the trial court correctly ruled that Commissioner Loree may not sentence convicted misdemeanants unless both the defendant and the District Attorney, either expressly or impliedly stipulate to her acting as such.   As we have explained, the District Attorney's physical absence from the misdemeanor arraignments and immediately subsequent sentencing proceedings is not tantamount to such a stipulation, and it does not constitute a forfeiture of the People's status as a party litigant under the circumstances presented in this case.

IV

DISPOSITION

The alternative writ is discharged.   The petition is dismissed as to petitioners “Judicial Districts” and James Kahle.   The petition is denied as to petitioners Judge Hinman and Commissioner Loree.

FOOTNOTES

1.   We note that the People concede here that the petitioner, Commissioner Loree, by reason of her appointment as a commissioner by a court of record, need not be a temporary judge in order to conduct a misdemeanor arraignment proceeding because such action is the performance of a “subordinate judicial duty” for which she has authority under the California Constitution, article VI, section 22, and Government Code section 72190.1.   It states in its demurrer:  “․ [The People], through its counsel the District Attorney of Riverside County, has not and does not contest Commissioner Loree's authority to perform the subordinate judicial duty of conducting arraignments;  it is her performance of the separate, distinct and not subordinate duty of imposing sentence to which [the People] object.”   As pointed out by the People, an arraignment involves not only advising a defendant of his or her constitutional rights and the charges against him/her, but also accepting a plea of either guilty or not guilty to the charges.  (Pen.Code, §§ 987, 988.)The record does not establish whether or not Commissioner Loree accepted any pleas, or only pleas of not guilty at the arraignment.   Under Article VI, section 22 of the California Constitution, commissioners are limited to “subordinate judicial duties.”   In People v. Oaxaca (1974) 39 Cal.App.3d 153, 158, 114 Cal.Rptr. 178, the court held that sentencing was not a subordinate judicial duty even if the defendant pleads guilty.   In 67 Ops.Atty.Gen. 162, the Attorney General expresses the view that taking a plea is not a subordinate judicial duty, either.   However, Government Code section 72190 gives municipal court commissioners the same powers as judges with respect to all infractions.   We express no opinion on the validity of this statute vis-a-vis the Constitutional provision, or on whether the commissioner has the authority to accept guilty or no contest pleas to misdemeanor charges.   But, we accept the District Attorney's representation that it has stipulated and will stipulate that Commissioner Loree may accept any type of plea to any infraction or misdemeanor charge irrespective of whether such exercise of judicial authority was or was not in the performance of a subordinate judicial duty.

2.   We feel compelled at this point, especially in light of both parties' persistent assertion of procedural errors tangential to the merits of the case, to comment that the District Attorney apparently failed to understand the difference between a peremptory and an alternative writ.   The petition requests that a peremptory writ be issued against Judge Hinman, or that an alternative writ be issued against Commissioner Loree.   This makes no sense.   The proper procedure is for the alternative writ to offer the lower court the choice of complying with specified directions, or showing cause why the specified action should not be finally required.   The peremptory writ issues once the court has determined, after hearing, that the specified action should be ordered carried out.  (See Code Civ.Proc., §§ 1087 [mandate], 1104 [prohibition].)The District Attorney also arguably misstepped by naming only specific personnel as respondents.   In the usual mandate or prohibition proceeding directed at judicial action, it is the erring court which is the respondent.   We point out that an order compelling Judge Hinman to desist from assigning Commissioner Loree would have been ineffective to prevent any other judge, perhaps temporarily acting as Presiding Judge, from so assigning her.   However, as an order was sought directly affecting Commissioner Loree personally, it appears that she was properly named as an individual respondent.  (See generally 8 Witkin, Cal.Proc. [3d ed. 1985], Extraordinary Writs, § 149;  Calhoun v. Superior Court (1958) 51 Cal.2d 257, 260, 331 P.2d 648.)

3.   The order denying disqualification is appealable (see In re Lee G. (1991) 1 Cal.App.4th 17, 25 at fn. 4, 1 Cal.Rptr.2d 375) and we were unable to ascertain any need for immediate review.   The motion was not even filed until after the trial court issued its writ, and would apparently have affected only enforcement proceedings (and of course this proceeding).   The motion was based not on one of the typical bases—e.g. that counsel for the opposing side has a conflict of interest, or has improperly obtained confidential information from the moving party—but rather upon the Court's contention that the prosecution of the mandate proceeding, which it defined as a civil action, falls outside the District Attorney's statutory powers.

4.   “A commissioner of a municipal court or a justice court may conduct arraignment proceedings in the court if directed to perform those duties by a presiding or sole judge of the court․”  (Gov.Code, § 72190.1, see also Gov.Code, § 72190.)

5.   Presumably, the District Attorney meant the People as a party to any matter in which the District Attorney was providing representation to the People.

FOOTNOTE.   See footnote *, ante.

FOOTNOTE.   See footnote *, ante.

7.   (Gerstein v. Pugh (1975) 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54.)

8.   The responsive pleadings to the People's petition were filed purportedly on behalf of the Court as well as the individual respondents, but there were no “Doe” respondents listed in the petition and, insofar as the record shows, the Court never formally sought to become a party.

9.   The judgment “grants Petitioner's request for a Writ of Prohibition,” and the underlying petition seeks separate writ relief against Judge Hinman and Commissioner Loree.   But the writ, although addressed to “you,” is limited in its directory language to Commissioner Loree.

10.   We also overrule the People's demurrer to the petition insofar as it is based on the assertion that “the petition does not state facts sufficient to support issuance of the writ.”

11.   “Cause” means a particular proceeding in a specific case.   (Sarracino v. Superior Court (1974) 13 Cal.3d 1, 9, 118 Cal.Rptr. 21, 529 P.2d 53.)

12.   “Seminal,” but, contrary to the individual petitioners' assertion, not “dispositive.”

13.   In the traverse, petitioners briefly remark that in some cases the District Attorney does not “initiate” the criminal action, suggesting that other agencies (such as the California Highway Patrol) may “initiate” a criminal action, e.g., filing notices to appear regarding traffic violations.   Insofar as it constitutes some attempt to denigrate the significance of a prosecutor's role, this comment is not pertinent, because, however a criminal action is initiated, obviously it is “the People” who appear as plaintiff.  (Pen.Code, § 684.)   Furthermore, Government Code section 26500 expressly provides that the District Attorney “shall initiate” prosecutions, and we take this to be the correct usage even if some other agency performs the ministerial act of filing an accusatory pleading.  (See also Gov.Code, § 72193, granting similar authority to specified city prosecutors.)The underlying problem is—who is (or are) “the People”?  Penal Code section 684 establishes that “the People” is the true party plaintiff in a criminal action, and Government Code section 26500 confirms that the District Attorney merely acts “on behalf of” the People.   Can the public ectoplasm act in a criminal proceeding—stipulate or refuse to do so respecting a commissioner acting as a temporary judge—other than through the District Attorney or other public prosecutor?   In a sufficiently compelling case, it has been held that “the People,” acting through one prosecutorial agency, i.e., Attorney General, may seek to overturn a judicial act to which “the People,” acting through another prosecutorial agency, i.e., district attorney, have stipulated.  (People v. Mendez (1991) 234 Cal.App.3d 1773, 1784, 286 Cal.Rptr. 216.)We recognize that counsel may decide to stipulate to a temporary judge without the personal consent of his client.  (In re Horton, 54 Cal.3d 82, at p. 98, 284 Cal.Rptr. 305, 813 P.2d 1335.)   However, the question of whether counsel may do so if his client expressly objects is not settled.   (Id., at fn. 5, 284 Cal.Rptr. 305, 813 P.2d 1335.)   In a felony appeal, could the Attorney General argue that the District Attorney's stipulation to a temporary judge was made without “the People's” consent and against “the People's” desire?  (See Mendez, supra.)Perhaps wisely, neither side delves deeply into these enigmas.   Perhaps unwisely, we simply bring them up as food for thought.

14.   Nothing in the opinion suggests that the father's absence was due to inadvertence, inability, or prevention.

15.   The record indicates that there is a recommended schedule of routine sentencing dispositions to be followed (we presume, more or less loosely) by the judicial officers of the Court;  thus, the District Attorney's expectation that sentencing will proceed along predictable lines would be generally reasonable.

16.   As noted earlier, in this court the District Attorney has stated in its demurrer that it would not stipulate to Commissioner Loree acting as a temporary judge at misdemeanor sentencing proceedings.

TIMLIN, Associate Justice.

HOLLENHORST, Acting P.J., and McKINSTER, J., concur.