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Court of Appeal, Fourth District, Division 3, California.

Gilbert Lee MATHIS, and Nancy Jeanne Mathis, Petitioners, v. SUPERIOR COURT in and for the County of Orange, Respondent, PEOPLE of the State of California, Real Party in Interest.


Decided: May 30, 1984

William C. Fundenberg, Jr., Balboa, for petitioners. Cecil Hicks, Dist. Atty., Michael R. Capizzi, Asst. Dist. Atty., William W. Bedsworth and Randell L. Wilkinson, Deputy Dist. Attys., for real party in interest.


Gilbert Mathis is charged with two misdemeanor counts of attempting to receive stolen property (Pen.Code, §§ 664/49664496), and Nancy Mathis is jointly accused in the first.   The superior court issued a peremptory writ to overturn a ruling of the municipal court granting discovery of an informant's rap sheet.   Because the municipal court acted well within its fundamental jurisdiction over the parties and subject matter in the discovery proceeding, we hold the superior court erred in entertaining the prosecution's petition.


Defendants operated a Newport Beach beer bar named “Cassidy's” on July 19, 1983.   On that date they allegedly purchased three cartons of cigarettes for $9 from a police informant who falsely represented the items were stolen.   At the same time they placed a larger order.   They were arrested the following day after a monitored exchange with the informant of sixty more purportedly stolen cartons for $120.

On January 30, 1984, during discovery proceedings in the municipal court, the defense requested the informant's complete rap sheet.   The deputy district attorney agreed to provide it.   On March 5, 1984, at a discovery compliance hearing, a second prosecutor reneged on the commitment of the first, claiming the defense was merely entitled to information admissible at trial, i.e., adult felony convictions.   The municipal judge ordered all adult entries on the rap sheet disclosed for the obvious reason that inadmissible material might lead to admissible evidence.

The prosecution petitioned the superior court, arguing the district attorney and the municipal judge would violate Penal Code section 11142 by turning over the rap sheet and the defendants would violate Penal Code section 11143 by receiving it.  Penal Code section 11142 provides, “Any person authorized by law to receive a record or information obtained from a record who knowingly furnishes the record or information to a person who is not authorized by law to receive the record or information is guilty of a misdemeanor.”   The superior court's peremptory writ restricted the defense discovery to felonies, adult and juvenile.


The prosecution continues to advance the argument it raised in the lower courts and incorporates its own superior court memorandum of points and authorities in its reply in this proceeding.   There the district attorney argued, “Penal Code section 11143 reads:  Any person, except those specifically referred to in Section 1070 of the Evidence Code, who, knowing he is not authorized by law to receive a record or information obtained from a record, knowingly buys, receives, or possesses the record or information is guilty of a misdemeanor.  [¶] Penal Code section 11140(a) reads:  ‘Record’ means the state summary criminal history information as defined in subdivision (a) of Section 11105, or a copy thereof, maintained under a person's name by the Department of Justice.  [¶] Clearly, if [the municipal court's] order is allowed to remain in effect it will place Deputy District Attorney Sean O'Brien in the position of being coerced to commit a misdemeanor, and [the municipal court judge] would, with all due respect, be a principal to the crime.   [Penal Code] § 31.   Similarly the Real Parties, by receiving such information, would be in violation of a misdemeanor as well.”

The prosecution neglected to cite subdivision (b) of Penal Code section 11140 to the superior court, however.   That provision states, “ ‘A person authorized by law to receive a record’ means any person or public agency authorized by a court, statute, or decisional law to receive a record.”   (Emphasis added.)   Although exposing its awareness of subdivision (b), the prosecution disingenuously and without citation of authority now tells us, “Clearly no case law or statutory law in the history of this state has ever entitled a defendant to gain total access to the criminal rap sheet of a prospective witness at his trial.   Because this is the case the Petitioner[s] [are] not authorized to receive such records and a misdemeanor would have been committed by the respondent court, prosecutor and the Petitioner[s], once such information was made available.   Thus the original order by [the municipal court judge] was clearly in excess of his jurisdiction.”   Unfortunately we would only be able to consider this exceedingly dubious proposition on the merits in dicta for reasons which follow.   We therefore decline.  (But see, e.g., Pen.Code, §§ 11140, subd. (b) and 11105, subd. (b) and 11105, subd. (b)(8);  Davis v. Alaska (1974) 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347;  People v. Ruthford (1975) 14 Cal.3d 399, 406–407, 121 Cal.Rptr. 261, 534 P.2d 1341;  In re Ferguson (1971) 5 Cal.3d 525, 533–535, 96 Cal.Rptr. 594, 487 P.2d 1234;  People v. Adams (1983) 149 Cal.App.3d 1190, 197 Cal.Rptr. 623;  People v. Coyer (1983) 142 Cal.App.3d 839, 843, 191 Cal.Rptr. 376.)


 The district attorney's argument is merely a convenient introduction to the only question we need to reach:  Should the prosecution enjoy the right to seek pretrial extraordinary relief from discovery orders in misdemeanor cases at all?   We invited petitioners to amend their original petition for an alternative writ to seek a peremptory writ in the first instance and asked the district attorney to justify his procedural position in seeking extraordinary relief in the superior court in a routine misdemeanor discovery matter.   In our order, we cited several cases which arguably bar the device—except perhaps in the most extreme of circumstances.

We received this rather unperceptive reply:  “The People respectfully decline this Court's invitation to comment on People v. Superior Court (Stanley) (1979) 24 Cal.3d 622, 156 Cal.Rptr. 626, 596 P.2d 691, and People v. Municipal Court (Kong) (1981) 122 Cal.App.3d 176, 175 Cal.Rptr. 861.   Both cases concern themselves with whether the People are entitled to take writs in given situations.   As was noted earlier, the Petitioner does not here allege that the Superior Court's order was in error.   Likewise he has never questioned the People's right to take said petition to the Orange County Superior Court.   People v. Superior Court (Greer) (1977) 19 Cal.3d 255, 137 Cal.Rptr. 476, 561 P.2d 1164.   The Petitioner's action here is against the Municipal Court and not the Superior Court.   Thus, whether the People were entitled to take the original petition, is not an issue before this Court.”   We believe the issue is before us.   If the prosecution has no business in the superior court on a misdemeanor discovery matter in the first place, there is no reason for us to say anything more than that.   The defendant's failure to object does not confer jurisdiction where none exists.

Had the district attorney accepted our request to brief the procedural issue, he would have encountered some support in the opinion of Division Two of this court in People v. Municipal Court (Bonner) (1980) 104 Cal.App.3d 685, 163 Cal.Rptr. 822.  Bonner is distinguishable, however;  it deals with a discovery order in a felony proceeding in the municipal court.   The Legislature has given the prosecution a means of appellate review of municipal court orders in felony proceedings (Pen.Code, § 871.5):  “The People's remedy by way of appeal would be to refuse to comply with the disclosure order, suffer a dismissal as a consequence, and then appeal the dismissal order ․”  (People v. Superior Court (Levy) (1976) 18 Cal.3d 248, 251, 133 Cal.Rptr. 624, 555 P.2d 633.)  Bonner found the appellate avenue potentially inadequate in a felony discovery proceeding, distinguishing Levy.   We need not consider the soundness of that notion, for no statutory right to appeal a discovery order in a misdemeanor proceeding is accorded to the prosecution (Pen.Code, § 1466).   Where no appellate right exists, “review of any alleged error may be sought by a petition for [extraordinary relief] only when a trial court has acted in excess of its jurisdiction and the need for such review outweighs the risk of harassment of the accused.”  (People v. Superior Court (Stanley), supra, 24 Cal.3d 622, 625–626, 156 Cal.Rptr. 626, 596 P.2d 691.)   No writ will lie to test “ ‘ordinary judicial error’ ” (id., at p. 626, 156 Cal.Rptr. 626, 596 P.2d 691;  People v. Krivda (1971) 5 Cal.3d 357, 364, fn. 5, 96 Cal.Rptr. 62, 486 P.2d 1262), “ ‘egregiously erroneous' orders” (People v. Superior Court (Stanley), supra, 24 Cal.3d at p. 626, 156 Cal.Rptr. 626, 596 P.2d 691;  People v. Superior Court (Howard) (1968) 69 Cal.2d 491, 498, 72 Cal.Rptr. 330, 446 P.2d 138), or even judicial abuse of discretion (People v. Municipal Court (Kong), supra, 122 Cal.App.3d 176, 180, 175 Cal.Rptr. 861).   If the rule were different, “the People [would enjoy] the very appeal which the Legislature has denied to them.”  (People v. Superior Court (Howard), supra, 69 Cal.2d, at p. 499, 72 Cal.Rptr. 330, 446 P.2d 138.)   Moreover, “[t]he restriction on the People's right to appeal is not merely a procedural limitation allocating appellate review between direct appeals and extraordinary writs but is a substantive limitation on review of trial court determinations in criminal trials.”  (Id., at p. 498, 72 Cal.Rptr. 330, 446 P.2d 138.)

 We are aware there is considerable confusion in this area of the law,1 but must agree with the above quoted line of authority.   An error in the municipal court which justifies pretrial intervention by the superior court on behalf of the prosecution must reach fundamental jurisdictional proportions, i.e., lack of jurisdiction over the person, subject matter, or case.  (People v. Superior Court (Levy), supra, 18 Cal.3d 248, 252, 133 Cal.Rptr. 624, 555 P.2d 633;  People v. Superior Court (Edmonds) (1971) 4 Cal.3d 605, 608, 94 Cal.Rptr. 250, 483 P.2d 1202.)   For example, the municipal court in Kong did far greater violence to prosecution plans than the routine little discovery order attacked below threatened to accomplish.   There the municipal court reduced six felony charges to misdemeanors after a postindictment preliminary hearing (Pen.Code, § 17, subd. (b)(5)), and the Court of Appeal held the superior court's intervention was improper because the error was not of jurisdictional magnitude.

Language in the Bonner opinion can be read to support prosecution access to the superior court before trial to review discovery orders in misdemeanor cases simply because the possibility exists for the defense:  “In the case at bench, it could hardly be expected that the Legislature would have provided for an appeal, because the law of criminal discovery in California is a creation of the judiciary, not the Legislature.  [Citation.]  Orders denying an accused discovery to which he is entitled are considered in excess of jurisdiction and reviewable by writ.  [Citations.]  We perceive no reason why the People should not be accorded a similar right to pretrial review by writ of a discovery order for which no support can be found in the record. ”  (People v. Bonner, supra, 104 Cal.App.3d 685, 695, 163 Cal.Rptr. 822, emphasis added.)   We perceive several reasons.

First, Bonner's attempt to equate prosecution and defense pretrial access to higher courts in discovery matters, if not erroneous, must be considered dicta.   As we noted, where the prosecution is not entitled to posttrial relief, it has no legal remedy pretrial a fortiori.   Thus, Bonner's holding can only be explained on the basis that the prosecution's appellate remedy was inadequate, not nonexistent.   The following language appears to confirm this point:  “the People had no adequate remedy by way of appeal from the order that these records be produced.   In fact, the superior court determined that the People had no adequate remedy in the ordinary course of law when it issued the alternative writ.”  (Id., at p. 693, 163 Cal.Rptr. 822.)

 Second, there are a number of compelling grounds for denying to the prosecution in misdemeanor proceedings before trial that which it may not seek after.   Apart from the untoward expense to a defendant in a relatively minor case and the burden to the superior court's overcrowded docket, writs should not be used to expand or create unintended, unexpected, and, as here, largely unnecessary appellate avenues.   We frankly find it difficult to imagine an abuse of defense pretrial discovery in a misdemeanor prosecution which could rise to a level justifying superior court intervention where the municipal court has acted within its fundamental jurisdiction.   If the burden to the prosecution is simply too onerous, it can generally abandon the prosecution of what is usually a relatively minor matter rather than comply.2

Third, the notion defense and prosecution discovery enjoy a degree of reciprocity on any level, substantive or procedural, is novel indeed.  (See, e.g., People v. Collie (1981) 30 Cal.3d 43, 177 Cal.Rptr. 458, 634 P.2d 534;  Allen v. Superior Court (1976) 18 Cal.3d 520, 134 Cal.Rptr. 774, 557 P.2d 65;  In re Polos (1984) 154 Cal.App.3d 448, 200 Cal.Rptr. 749.)   So are the district attorney's actions in this case.   The prosecution has now provided a partial rap sheet to the defense which shows some half dozen felony accusations against the informant between 1959 and 1979 and at least one apparent state prison commitment.3  It seems dubious indeed the full rap sheet would turn up ancient juvenile offenses of such notoriety or misdemeanors or other entries of such a startling nature as to evoke this quantum of anxiety.

We have carefully considered the response to the petition.   Issuance of an alternative writ could add nothing to our review of the matter, and a peremptory writ in the first instance is appropriate.  (Code Civ.Proc., § 1088;  Van Velzer v. Superior Court (1984) 152 Cal.App.3d 742, 745, 199 Cal.Rptr. 695.)   Let a peremptory writ of mandate issue directing the superior court to vacate its former ruling and enter a new order denying the prosecution's petition.


1.   One leading text observes, for example, “However, it has often been said that an extraordinary writ does not lie to review ‘ordinary judicial error’ not in excess of the court's jurisdiction.  [Citations.]  No one has adequately defined that amorphous phrase or explained the difference between abuse of discretion and ordinary judicial error.   Particularly with respect to writs sought by the People, that line is frequently drawn in favor of review when the trial court has merely misconstrued or failed to follow existing case law.  [Citations.]  But see People v. Municipal Court (Kong) [supra] 122 Cal.App.3d 176, 175 Cal.Rptr. 861, in which the court disagreed with such an ‘expansive concept’ where the reviewing court fails to undertake the balancing test required by the court in People v. Superior Court (Howard ) [supra ] 69 Cal.2d 491, 72 Cal.Rptr. 330 [446 P.2d 138.]”  (Appeals and Writs in Criminal Cases (Cont.Ed.Bar 1982) § 2.14, pp. 214–215.)

2.   If in a rare instance the court rejects a motion to dismiss made to avoid defense discovery, a petition for writ could be entertained without discommoding judicial resources.   The appearance of Halley's Comet is probably a more common occurrence than a refusal to dismiss a misdemeanor on the prosecution's motion.

3.   We understood this would violate Penal Code section 11142.   (See pp. 66–67, ante.)

CROSBY, Associate Justice.

WALLIN, Acting P.J., and BRICKNER, J.*, concur.