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Court of Appeal, Third District, California.

Vincent Joseph MALONE, Jr., Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF SACRAMENTO, Respondent; PEOPLE of the State of California, Real Party in Interest.

Civ. 14888.

Decided: March 06, 1975

Kenneth M. Wells, Public Defender, Sacramento by Burton Loehr, Asst. Public Defender, for petitioner. Evelle J. Younger, Atty. Gen. by Janice Hayes, Deputy Atty. Gen., Sacramento, for respondent.

Petitioner seeks a writ of prohibition to prevent further proceedings upon an indictment charging him with receiving stolen property (Pen.Code, § 496) and alleging three prior felony convictions.

The prosecution had been initiated by a complaint charging petitioner with burglary and with receiving stolen goods. At the preliminary hearing the district attorney ‘stipulated’ that both charges were to be tried as misdemeanors.1 Defense counsel joined in the ‘stipulation.’ Defendant then entered a not guilty plea and the case was set down for a jury trial in the municipal court.

At the time of the preliminary hearing the district attorney was aware of a ‘parole hold’ lodged against petitioner, that is, that he had at least one prior felony conviction. Actually, petitioner had three priors.2 According to the People's return to our order to show cause, the district attorney later discovered some aggravating features of defendant's activity. The new information prompted the district attorney to seek a felony indictment at the hands of the grand jury. That body did not indict on the burglary charge but did return an indictment charging defendant with receipt of stolen goods and three prior felony convictions. Following the indictment the original complaint was dismissed ‘in furtherance of justice’ at the district attorney's request. (Pen.Code, § 1385.)

As a bar to further prosecution, petitioner invokes Penal Code section 1387, which declares: ‘An order for the dismissal of the action, made as provided in this chapter, is a bar to any other prosecution for the same offense if it is a misdemeanor, but not if it is a felony.’

Petitioner argues that the stipulation in the municipal court and judicial acceptance of his not guilty plea conclusively fixed the character of the charged offenses as misdemeanors, whose dismissal bars another prosecution for the same offense. He relies on Penal Code, section 17, subdivision (b), subsection (5), which specifies that after certain events an alternative felony-misdemeanor becomes a misdemeanor ‘for all purposes.'3

We commence our analysis by comparing subsections (4) and (5) of section 17(b) (fn. 3, ante). The former invests the district attorney with a pre-prosecution choice, which permits him to extend lenience to the defendant by a complaint designating the offense as a misdemeanor rather than felony. The election may be made by the district attorney alone, provided the defendant does not object. Subsection (5) permits a similar mitigation through an election which occurs after the prosecution gets under way. On its face, subsection (5) requires the concurrence of the prosecution, the defense and the magistrate. Both subsections are aimed at similar objectives—to permit the selection of offenders who merit more lenient treatment, to encourage guilty pleas by limiting the potential penalty and to save court time and expense. (People v. Ayala, 34 Cal.App.3d 360, 365, 109 Cal.Rptr. 193; Necochea v. Superior Court, 23 Cal.App.3d 1012, 1016, 100 Cal.Rptr. 693.)

Often the district attorney doesn't have enough information to make a firm election before filing the complaint or in the prosecution's early stage. New knowledge may reveal that mitigation of the charge was a regrettable choice. Penal Code section 1387 exhibits a design to endow the prosecutor with flexibility. It permits a second prosecution for felony by indictment or information after a misdemeanor complaint has been dismissed. (People v. Ayala, supra, 34 Cal.App.3d at p. 364, 109 Cal.Rptr. 193; Necochea v. Superior Court, supra, 23 Cal.App.3d at p. 1015, 100 Cal.Rptr. 693.) Thus, when a district attorney elects under subsection (4) of section 17(b) to prosecute the offense as a misdemeanor, that election is not conclusive; it does not prevent dismissal of the misdemeanor complaint and initiation of a felony prosecution based upon the same occurrence. (Necochea v. Superior Court, supra, 23 Cal.App.3d at p. 1016, 100 Cal.Rptr. 693.)

Awareness of the kindred policy underlying subsection (5) justifies the assumption that similar flexibility should hold sway, that an election made in the magistrate court under subsection (5) could be voided should new knowledge warrant a felony charge. A constitutional policy supervenes. Esteybar v. Municipal Court, 5 Cal.3d 119, 95 Cal.Rptr. 524, 485 P.2d 1140 observes that subsection (5)—unlike subsection (4)—involves the magistrate in the election between felony and misdemeanor proceedings. ‘[The magistrate's] act of holding a defendant to answer a felony or a misdemeanor charge is a judicial act and involves an exercise of judicial discretion. . . . Since the exercise of a judicial power may not be conditioned upon the approval of either the executive or legislative branches of government, requiring the district attorney's consent in determining the charge on which a defendant shall be held to answer violates the doctrine of separation of powers. . . Penal Code, section 17, subdivision (b)(5), violates article III, section 1 of the California Constitution insofar as it requires the consent of the prosecutor before a magistrate may exercise the power to determine that a charged offense is to be tried as a misdemeanor.’ (Id. at pp. 126–128, 95 Cal.Rptr. at p. 529, 485 P.2d at p. 1145.)

After the magistrate, with or without the prosecutor's concurrence, has acted under subsection (5) to fix the offense as a misdemeanor, the prosecutor's ex parte dismissal of the action and initiation of a new felony proceeding would effectively frustrate the magistrate's judicial act. Were it permissible, that conduct would unconstitutionally invade the magistrate's judicial authority. It is not permissible. Although section 1385 permits a district attorney to request a dismissal in furtherance of justice, only the court may order it. Thus, the judicial branch controls both the first prosecution's classification as a felony or misdemeanor proceeding and its later dismissal for the purpose of a second prosecution.

As we have noted, section 1387 gives the prosecutor flexibility to act upon tardy information warranting a felony action. A judicial determination under subsection (5) of section 17(b) does not deprive him of that flexibility, provided he obtains the court's consent. The court's judicial act under subsection (5) may be abrogated by its judicial act in permitting a dismissal for the sake of a new prosecution. The parallel objectives of subsections (5) and (4) of section 17(b) support the same result under the former as the Necochea decision reached under the latter—neither election is conclusive and neither defeats a dismissal and later felony prosecution.

There is room here for debate whether a judicial act, in the sense of an informed judicial decision, occurred. Neither the magistrate nor counsel revealed awareness of Esteybar or recognition that the district attorney's concurrence rested on an unconstitutional provision of the statute. The magistrate made no independent inquiry for the purpose of electing to class the changes as misdemeanors; rather, he simply accepted the defendant's plea to a misdemeanor complaint after both attorneys had expressed their consent. On the assumption that acceptance of the misdemeanor plea was a judicial act, that act was effectively abrogated when the same magistrate, as a municipal judge, granted the district attorney's motion for dismissal of the action.

Petitioner charges the district attorney with breach of a stipulation, i. e., a binding agreement in open court. The unconstitutional portion of section 17(b)(5) refers to consent, not a stipulation. The prosecutor indulged in ill-chosen, professional jargon when he offered to ‘stipulate’ that the case could proceed at the misdemeanor level. Consent was enough and no more than consent was intended. Initiation of a second prosecution at the felony level breached no stipulation.

The petition for prohibition is denied. The order staying petitioner's trial will terminate upon the finality of this decision.


1.  Both second degree burglary and receiving stolen goods are punishable by a state prison sentence or by a county jail term of not more than one year. (Pen.Code, §§ 461, 496.)

2.  The People's return to our order to show cause avoids a forthright declaration that the district attorney was either aware or ignorant of the three priors at the time of the preliminary hearing.

3.  Penal Code section 17, subdivision (b), provides in part: ‘When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances:‘. . .‘(4) When the prosecuting attorney files in a court having jurisdiction over misdemeanor offenses a complaint specifying that the offense is a misdemeanor, unless the defendant at the time of his arraignment or plea objects to the offense being made a misdemeanor, in which event the complaint shall be amended to charge the felony and the case shall proceed on the felony complaint.‘(5) When, at or before the preliminary examination and with the consent of the prosecuting attorney and the defendant, the magistrate determines that the offense is a misdemeanor, in which event the case shall proceed as if the defendant had been arraigned on a misdemeanor complaint.’

FRIEDMAN, Acting Presiding Justice.

REGAN and JANES, JJ., concur.

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