Booker T. BRADFORD, Jr., Plaintiff and Respondent, v. The MUNICIPAL COURT, SOUTHERN JUDICIAL DISTRICT, COUNTY OF SAN MATEO, Defendant. The PEOPLE of the State of California, Real Party in Interest and Appellant.
In 1967 Booker T. Bradford, Jr., was charged in the municipal court (in that court's criminal action no. 84M179) with the misdemeanor offense of failure to support a minor child. (Pen.Code, § 270.) In addition to a plea of not guilty, Bradford entered a plea of former jeopardy based upon the events of a similar prosecution which had been commenced in the same court in 1961, which had involved the same child, and which was dismissed in 1962 after the trial had started and the People's first witness had been sworn and testified. Bradford also moved the municipal court, in the 1967 prosecution, for an order dismissing it upon the ground of former jeopardy. The municipal court denied the motion and set the cause for trial on the plea of not guilty. Bradford thereafter commenced civil action no. 136279 in the superior court, seeking a writ of prohibition to restrain the municipal court, upon the same jeopardy ground, from proceeding further with the 1967 prosecution. The superior court issued an alternative writ and, after a hearing upon the petition and the People's return thereto, entered a judgment directing issuance of a peremptory writ as prayed.
Appealing from the superior court's judgment in civil action no. 136279, the People assert various errors in the determination, by that court, that Bradford had been once in jeopardy for the misdemeanor charged. However (and as hereinafter discussed), the People could not have appealed from a dismissal order of the municipal court if Bradford's motion in that court had been granted. The first question presented, therefore, is whether the same limitation applies to preclude their appeal from the superior court's judgment which achieved an identical result because it effectively terminated Bradford's prosecution. We have concluded that the limitation does apply in this situation, that the People cannot appeal from the superior court's judgment, and that their purported appeal must be dismissed.
The Legislature has determined that the People have no right of appeal in a criminal case, in the superior court, except from those orders explicitly enumerated in Penal Code section 1238. (People v. Superior Court of Marin County (1968) 69 Cal.2d 491, 497–498, 72 Cal.Rptr. 330, 446 P.2d 138; People v. Valenti (1957) 49 Cal.2d 199, 204–205, 316 P.2d 633.) ‘The restriction on the People's right to appeal [in such cases] is not merely a procedural limitation * * *, but is a substantive limitation on review of trial [i.e., superior] court determinations in criminal trials. (Citations.)’ (Emphasis added.) (People v. Superior Court of Marin County, supra, at p. 498, 72 Cal.Rptr. at p. 335, 446 P.2d at p. 143.)
The same reasoning applies to limit the People's right to appeal from a judgment or order of the municipal court in a criminal action. The Legislature having spelled out (in Penal Code section 1466) the judgments or orders of that court from which the People may appeal, it follows that their right of appeal from action by that court is subject to a similar legislative—and ‘substantive’—limitation: i.e., that they have no appeal from the municipal court except as is permitted by Penal Code section 1466. (See People v. Superior Court of Marin County, supra, 69 Cal.2d 491 at pp. 497–498, 72 Cal.Rptr. 330, 446 P.2d 138.)
A motion to dismiss a criminal prosecution upon the ground of former jeopardy requires the trial court to determine as a matter of law that the defendant had been once in jeopardy for the offense charged, and for that reason is not subject to prosecution therefor; an order granting such motion, entered in the prosecution and formally dismissing it, operates as an acquittal of the defendant, a final termination of the action, and judgment to both effects. (People v. Superior Court of Los Angeles County (1963) 217 Cal.App.2d 517, 519, 31 Cal.Rptr. 710.) The People cannot appeal from a municipal court order to that effect because, made upon the ground of former jeopardy, it is not among the orders enumerated in Penal Code section 1466 (which permits a People's appeal from an order or judgment of dismissal only where the defendant has not been in jeopardy).1 That being so, the People cannot obtain appellate review of the same order by resorting to a petition for extraordinary relief in a higher (i.e., the superior) court. (People v. Superior Court of Los Angeles County, supra.)
If, thus (and hypothetically), the municipal court had granted Bradford's motion to dismiss, the People could not have appealed from the consequent order of dismissal, nor could they have challenged it by seeking an extraordinary writ in the superior court. In the actual situation which developed here, the People undertook neither step: it was Bradford who, aggrieved by the municipal court order denying his motion to dismiss for former jeopardy, took the matter forward by seeking prohibition in the superior court. The latter court having entered judgment adverse to the People in Bradford's proceeding in prohibition, the broad question is whether they (the People) have a right of appeal from that judgment. Here, again (and as previously stated), the Legislature has imposed upon the People a ‘substantive limitation’ in that it has not accorded them the right to appeal from a criminal judgment of the superior court in such situation. (Pen.Code, § 12382 ; People v. Superior Court of Marin County, supra, 69 Cal.2d 491 at pp. 497–498, 72 Cal.Rptr. 330, 446 P.2d 138; People v. Valenti, supra, 49 Cal.2d 199 at pp. 204–205, 316 P.2d 633.) Thus, in determining whether the People can appeal from that court's judgment granting an extraordinary writ in the present case, the essential question is whether the People's posture in the actual situation is significantly different than it would have been in the hypothetical circumstances previously cited.
We perceive no real difference. Where the People cannot appeal from an order dismissing a criminal prosecution, the courts preclude them from obtaining appellate review by extraordinary writ (1) because to permit such result ‘would be to give the People the very appeal which the Legislature has denied to them’ (People v. Superior Court of Marin County, supra, 69 Cal.2d 491 at p. 499, 72 Cal.Rptr. 330 at p. 336, 446 P.2d 138 at p. 144; People v. Superior Court of Los Angeles County, supra, 217 Cal.App.2d 517 at p. 520, 31 Cal.Rptr. 710) and (2) because as the Supreme Court has stated, ‘Appellate review at the request of the People necessarily imposes substantial burdens on an accused, and the extent to which such burdens should be imposed to review claimed errors involves a delicate balancing of the competing considerations of preventing harassment of the accused as against correcting possible errors. * * * [T]he proper balancing of these considerations prohibits review * * * at the request of the People where * * * there is a danger of * * * trial or retrial. Such a rule will give meaningful effect to the legislative policy limiting review and the burdens on the defendant.’ (People v. Superior Court of Marin County, supra, 69 Cal.2d at p. 501, 72 Cal.Rptr. at p. 337, 446 P.2d at p. 145.)
The same principles apply here. The People, challenging a judicial determination that a criminal defendant's former jeopardy precludes his prosecution, are seeking ‘the very appeal which the Legislature denied to them.’ Because the ‘danger’ that Bradford may be forced to trial is a very real one, the ‘proper balancing of the competing considerations' requires that the People be denied the appeal, because only such action will give ‘meaningful effect to the legislative policy limiting review and the burdens on the defendant.’
Arguing to the contrary, the Attorney General contends that any limitations upon the People's right of appeal in criminal cases do not apply here because superior court action no. 136279 is a civil proceeding which is brought under sections 1102 –1105 of part 3 of the Code of Civil Procedure, and in which they have an unlimited right of appeal from the judgment under Code of Civil Procedure section 1110. We are not persuaded, however, that the Legislature which deliberately withheld a specific right of review from the People in Penal Code section 1238 (People v. Superior Court of Los Angeles County, supra, 217 Cal.App.2d 517 at p. 520, 31 Cal.Rptr. 710) intended to grant them that right when it enacted Code of Civil Procedure section 1110.
Moreover, the Attorney General's argument rests upon the form of the action in which the now-challenged point was presented for judicial determination. However, the Legislature's essential restriction of the People's right to appeal from that determination is a ‘substantive limitation’ (People v. Superior Court of Marin County, supra, 69 Cal.2d 491 at p. 498, 72 Cal.Rptr. 330, 446 P.2d 138) which we should not ignore in the interests of form. As the Attorney General's argument would have us do precisely this, we must reject it.
The appeal is dismissed.
1. The statute provides in pertinent part as follows:‘1466. An appeal may be taken from a judgment or order of an inferior court, in a criminal case, to the superior court of the county in which such inferior court is located, in the following cases:‘1. By the people:‘(a) From an order or judgment dismissing or otherwise terminating the action before the defendant has been placed in jeopardy or where the defendant has waived jeopardy;‘(b) From a judgment for the defendant upon the sustaining of a demurrer;‘(c) From an order granting a new trial;‘(d) From an order arresting judgment;‘(e) From any order made after judgment affecting the substantial rights of the people.‘* * *’ (Emphases added.)
2. As pertinent here (i. e., as it read prior to its amendment by Stats.1968, ch. 532, § 1, p. 1186), Penal Code section 1238 provided as follows:‘An appeal may be taken by the people:‘1. From an order setting aside the indictment, information, or complaint;‘2. From a judgment for the defendant on a demurrer to the indictment, accusation or information;‘3. From an order granting a new trial;‘4. From an order arresting judgment;‘5. From an order made after judgment affecting the substantial rights of the people;‘6. From an order modifying the verdict or finding by reducing the degree of the offense or the punishment imposed.’ (Emphasis added.)
RATTIGAN, Associate Justice.
DEVINE, P. J., and CHRISTIAN, J., concur.