DePAUL v. PEOPLE

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Court of Appeal, First District, Division 4, California.

Michael DePAUL, Petitioner, v. SUPERIOR COURT of the State of California, In and For the COUNTY OF SONOMA, Respondent; The PEOPLE of the State of California, Real Party in Interest.

A019524.

Decided: May 17, 1983

Marteen J. Miller, Public Defender, County of Sonoma, William H. Marioni, Deputy Public Defender, Gayle Guynup, Santa Rosa, for petitioner. George Deukmejian, John Van de Kamp, Attys. Gen., Laurence K. Sullivan, Deputy Atty. Gen., San Francisco, Gene L. Tunney, Dist. Atty., Sonoma County, John Bohrer, Deputy Dist. Atty., Santa Rosa, for respondent.

Michael DePaul, the petitioner in this original proceeding, is the defendant in a criminal prosecution pending in respondent court.   He is presently awaiting trial on a charge of murder (Pen.Code, § 187) with an allegation of a special circumstance which would support punishment by death if it were found to be true.  (See id., former § 190.2.) 1

After proceedings to be described, petitioner (hereinafter “defendant”) moved respondent court for an order dismissing the prosecution on the ground that an information had not been filed against him within 15 days after he had been held to answer to the charge of murder.   The court denied the motion.   Defendant thereupon commenced the present proceeding, in which he seeks an appropriate writ which will have the effect of terminating the prosecution.

We have not heretofore issued an alternative writ or order to show cause.   Defendant's position was fully briefed in the papers accompanying his petition.   In an effort to define the issues, we conducted an informal conference which was attended by the prosecutor, by defense counsel, and by a representative of the Attorney General.   The issues were extensively discussed at the conference, and the Attorney General thereafter filed a letter brief.   Defense counsel was given the opportunity to reply, but elected to decline.   The facts alleged in the petition are not disputed.   The issues having been fully presented in the sequence described, we now dispose of the petition by directing the issuance of an appropriate peremptory writ in the first instance.  (See Code Civ.Proc., §§ 1088, 1105;  Blumenthal v. Superior Court (1980) 103 Cal.App.3d 317, 320, 163 Cal.Rptr. 39;  San Diego Wholesale Credit Men's Assn. v. Superior Court (1973) 35 Cal.App.3d 458, 464–465, 110 Cal.Rptr. 657;  5 Witkin, Cal. Procedure (2d ed. 1971) Extraordinary Writs, § 149, par. (2), p. 3919;  5 Witkin, op. cit. (1981 Supp.) § 149, pp. 147–148.)

Procedural Sequence In Respondent Court

The record filed with the petition supports the following undisputed recitals:

Defendant was initially charged in a three-count indictment which was returned in respondent court by the Sonoma County Grand Jury in 1982.   He was charged in Count I with the murder of Julie Sawyer on July 3, 1978, in violation of section 187.   Count I included allegations of special circumstances (1) that the murder was committed while defendant was “engaged in the commission of rape within the meaning of Section 261 ․ and Section 190.2(c)(3)(iii) ․” and (2) that the murder was “willful, deliberate and premeditated and involved the infliction of torture within the meaning of Section 190.2(c)(4) ․”  (See fn. 1, ante.)

Defendant was charged in Count II of the indictment with the attempted murder (§§ 187, 664) of Tony Morales on the same date (July 3, 1978).   He was charged in Count III with having assaulted Morales on that date “with a deadly weapon and by means of force likely to produce great bodily injury” in violation of section 245, subdivision (a).

Defendant was arraigned on the indictment in respondent court.   At the arraignment, he requested that a postindictment preliminary hearing be conducted in that court pursuant to Hawkins v. Superior Court (1978) 22 Cal.3d 584, 150 Cal.Rptr. 435, 586 P.2d 916.   The request was granted.   In a letter written to the prosecutor before the so-called “Hawkins hearing” was commenced, defense counsel requested that the People “refile the indictment as a complaint pursuant to Hawkins.”   The prosecuting attorney stated in a reply letter that “the People were not going to refile the indictment as a complaint,” and that “they intend to proceed with the [Hawkins ] hearing using the indictment.”

The so-called “Hawkins hearing” was thereupon conducted in respondent court.   It was preceded by a discussion in chambers at which defendant's “request to have the People refile the indictment as a complaint was denied.”   At the commencement of the hearing, the court stated on the record that “this preliminary is being held pursuant to the requirement of Hawkins v. Superior Court ․ after a return of the indictment by the Sonoma County Grand Jury.”   The court further stated that it “takes the position that the ․ [indictment] ․ is an accusatory pleading, which is already on file and constitutes the basis for the presentation of evidence.”

At the conclusion of the Hawkins hearing, respondent court ordered defendant held to answer to the charge of murder stated in count I of the indictment, but with the special-circumstance allegation of rape only;  declined to hold him to answer to the special-circumstance allegation that the murder had been committed with the “infliction of torture”;  and declined to hold him to answer to the charges of attempted murder and assault (stated in counts II and III of the indictment) on the ground that the People had presented no evidence on either charge.2

At a hearing called one week later, defense counsel requested that defendant be arraigned on a new information which would be filed currently and which would supersede the indictment.   Counsel argued that defendant was entitled to challenge respondent court's holding order by making a motion pursuant to section 995;  that the filing of an information would permit him to make the motion within 60 days of his arraignment on it, thereby establishing his right to pretrial appellate review of an order denying the motion as provided in section 1510;  and that appellate review would otherwise be precluded by section section 1510 because 60 days had already elapsed since defendant had been arraigned on the indictment.3  Counsel also cited “mandatory language” in Hawkins v. Superior Court, supra, 22 Cal.3d 584, 150 Cal.Rptr. 435, 586 P.2d 916, to the effect that “at the direction of the court the prosecuting attorney shall refile the indictment as a complaint” when an indicted defendant makes a timely request for a postindictment preliminary examination.  (See Hawkins v. Superior Court, supra, at p. 594, 150 Cal.Rptr. 435, 586 P.2d 916, quoted post.)

The prosecutor told the court that in his view “the indictment is the information” and that he was not “going to file another.”   The court terminated the argument and effectively denied defense counsel's request, stating:  “Let me see what Hawkins says․  [U]nder the situation at this point, the People are relying on the indictment and are not filing a new information.”   The court proceeded to set a date for defendant's trial on the murder charge pursuant to the holding order made at the conclusion of the Hawkins hearing.  (See fn. 3 and the accompanying text, ante.)

Defendant then noticed a motion for an order dismissing the prosecution pursuant to section 1382, subdivision 1, on the ground that “an information had not been filed within 15 days of ․ [defendant] ․ being held to answer ․” 4  Respondent court heard argument on the motion and denied it.   Defendant thereupon commenced the present proceeding by filing in this court a “Petition for Writ of Mandate and/or Prohibition and Application for Stay.”   We made an order staying further proceedings in respondent court pending disposition of the petition.

Review

The Supreme Court held in Hawkins that a defendant who has been indicted by a grand jury is constitutionally entitled to a “postindictment preliminary hearing.”  (Hawkins v. Superior Court, supra, 22 Cal.3d 584 at pp. 587–593, 150 Cal.Rptr. 435, 586 P.2d 916.)   Relative to the procedure to be followed consistent with its holding, the court further stated:

“The appropriate remedy for the constitutionally infirm treatment of indicted defendants is not to eliminate or alter radically the general indicting function of the grand jury;  indeed, that function is explicitly sanctioned in the California Constitution (art. I, §§ 14, 23) and specifically implemented by the Legislature (Pen.Code, § 888 et seq.)   Until such time as the Legislature may prescribe other appropriate procedures, the remedy most consistent with the state Constitution as a whole and least intrusive on the Legislature's prerogative is simply to permit the indictment process to continue precisely as it has, but to recognize the right of indicted defendants to demand a postindictment preliminary hearing prior to or at the time of entering a plea.   If the defendant makes a timely request for such a preliminary hearing, at the direction of the court the prosecuting attorney shall refile the indictment as a complaint, thus activating the procedures set forth in the Penal Code (see Pen.Code, § 859 et seq.).”  (Hawkins v. Superior Court, supra, 22 Cal.3d 584 at pp. 593–594, 150 Cal.Rptr. 435, 586 P.2d 916 [italics added;  fn. omitted].)

It has been shown that defendant made a timely request for a Hawkins hearing (“prior to ․ entering a plea”), and that the request was granted, but that the prosecutor and respondent court expressly declined to follow the further Hawkins mandate that when a postindictment preliminary hearing is requested “at the direction of the court the prosecutor shall refile the indictment as a complaint ․”  (Hawkins v. Superior Court, quoted supra, 22 Cal.3d 584 at p. 594, 150 Cal.Rptr. 435, 586 P.2d 916.)   We are now required to consider the consequences.

The Hawkins court expressly stated that the refiling of an indictment as a complaint would have the effect of “activating the procedures set forth in the Penal Code.”  (22 Cal.3d at p. 594, 150 Cal.Rptr. 435, 586 P.2d 916.)   The statutory procedures which are “activated” by the filing of a complaint include the conduct of a preliminary hearing on it (§§ 859b, 860–870);  a consequent order discharging the defendant (§ 871) or holding him to answer and committing him (§§ 872–873, 875–877);  and the filing of an information, which thereupon becomes the “accusatory pleading” on which he is prosecuted and tried in the superior court.  (§ 949 et seq.)

The necessity of close adherence to these procedures is demonstrable for several reasons.   It is not the “complaint” which defines the offense for which the defendant is prosecuted in the superior court.   That offense is identified in the information, which may be tested for support in the evidence received at the preliminary hearing.  (See § 995 as quoted in fn. 3, ante.)   The information thus supersedes the “complaint” for all purposes, and it alone is the “accusatory pleading.”   The significance of this is shown in the present case, where the only “accusatory pleading” on file (the indictment) charges defendant with murder, under two special circumstances, and with two other crimes, but he has been held to answer on a single charge of murder with a single special circumstance.   It is only the charge of murder to which defendant will be required to plead.   Only the allegation of the one special circumstance is tendered for denial.   The limited scope of the holding order will pervade the subsequent proceedings in the superior court, including but not limited to discovery by the defense.   It will affect the determination of such questions as jeopardy if they occur.   It will obviously affect the trial itself, commencing when the accusatory pleading “must” be read to the jury.  (§ 1093, subd. 1.)

 As defendant explicitly asserted in respondent court, the filing of an information against him will also have the effect of commencing the 60 days prescribed in section 1510 as the period within which he must challenge it by motion, pursuant to section 995, if he is to preserve his right to pretrial appellate review if the motion is denied.  (See fn. 3, ante.)   That right is substantial, and it is not to be denied by documentary mischance.

 We conclude that the Hawkins language requiring the prosecutor to “refile the indictment as a complaint” is literally a mandate in the circumstances shown here, and that it permits no deviation.   The prosecutor was not warranted in refusing to comply with the mandate at defendant's request, and respondent court erred in refusing to order the refiling of the indictment “as a complaint” before proceeding with the Hawkins hearing.

 The court nevertheless conducted the Hawkins hearing, and made its limited holding order (see fn. 2 and the accompanying text, ante ), with the same effect as if the indictment had been refiled as a complaint.   The procedural errors committed to that point were therefore harmless, but they became otherwise when the court declined to grant defendant's request to the effect that an information be filed against him after he had been held to answer to the charge of murder with one special circumstance.   The failure to order the filing of an information at that point was successive Hawkins error.

 Defendant challenged the successive error by moving for dismissal pursuant to section 1382, subdivision 1, which commands dismissal of a criminal prosecution, where an information is not filed within 15 days after the defendant has been held to answer, “unless good cause to the contrary is shown.”  (See fn. 4, ante.)   Respondent court's failure to grant the motion was another application of the court's erroneous view of the Hawkins mandate.   The court's view was not “good cause” for denying the motion.   Defendant has accordingly shown that he is entitled to relief in the present proceeding.

 We are not persuaded, however, that the relief to be granted is a writ which will have the effect of terminating the prosecution.   Prohibition does not lie because the failure to file a timely information was not jurisdictional.  (See § 739;  People v. Heeley (1928) 90 Cal.App. 654, 655–656, 266 P. 555.)   A writ of mandate ordering dismissal of the prosecution will inevitably result in its recommencement by the district attorney.   The time, repetition, expense, and further delay portended by that prospect will not serve the interests of the People or of defendant.   By reason of the flexibility in the law controlling extraordinary relief, we are at liberty to direct the issuance of a writ which appears to be the most appropriate remedy in the circumstances and in the interests of justice.  (See Cal. Const., art. VI, § 10, first par.;   Judicial Council of Cal., Annual Rep. (1967) p. 75;  5 Witkin, Procedure, op. cit. supra, Extraordinary Writs, §§ 5 [p. 3784], 183 [p. 3943].)  We are not limited in this regard by the label on the petition, or by its prayer, provided that the allegations in it support the relief we elect to grant.  (See Owens v. Superior Court (1959) 52 Cal.2d 822, 827, 345 P.2d 921;  5 Witkin, loc. cit., §§ 183–184, pp. 3942–3944.)

 The allegations in defendant's petition support the issuance of a writ of mandate which will require respondent court to order (1) that an information be filed against defendant, forthwith, based on the evidence received at the postindictment preliminary hearing and (2) that arraignment, plea, and further proceedings on the information be conducted in due course.   The further proceedings may include a challenge of the information on a motion by defendant pursuant to section 995, which may thus be made within the period prescribed in section 1510 once he has been arraigned on the information.  (See fn. 3.)

A peremptory writ of mandate will issue commanding respondent court to order the filing of an information and further proceedings, forthwith, consistent with this opinion.   Except as so ordered, the petition is denied.

FOOTNOTES

FOOTNOTE.  

1.   Statutory citations in this opinion are to the Penal Code.   As will appear, the murder with which petitioner is charged was allegedly committed in July of 1978.   Our citation to “former” section 190.2 accordingly refers to the statute as it read at that time (see Stats.1977, ch. 316, § 9, pp. 1257–1258) and before it was repealed and reenacted by the voters in November of 1978.  (Init. measure adopted Nov. 7, 1978, §§ 5–6;  see Ballot Pamp., Proposed Inits., Prop. 7, with arguments to voters, Gen.Elec. (November 7, 1978) pp. 41–43.)

2.   These orders were pronounced as follows:  “The court does find that there is sufficient evidence to justify a holding order;  that the evidence does demonstrate that the offense of murder, as alleged in count one, occurred, and that there is reasonable cause to believe that the defendant is guilty thereof, and the court, therefore, orders that he be held to answer in the superior court with respect to that offense.“The court further finds that there has been sufficient evidence presented which supports the allegation that the murder occurred in the commission of rape, and that there is reasonable cause, again, on the basis of the evidence, to believe the defendant guilty of that offense [sic ], and it is, therefore, the court's order that he additionally be held to answer with respect to the special circumstance charge or allegation of rape.“The court is not satisfied that there has been evidence presented which demonstrates an infliction of torture, as that term has been construed․  [T]he court, therefore, does not make a holding order with respect to the special circumstance[ ] allegation of infliction of torture.“Neither does the court make a holding order with reference to count two or to count three.   The District Attorney [is] not contending that evidence has been presented in these matters.”

3.   During 1982, section 995 provided in pertinent part as follows:  “The indictment or information must be set aside by the court in which the defendant is arraigned, upon his motion, in either of the following cases:  [¶] If it be an indictment: ․  [¶] 2.   That the defendant has been indicted without reasonable or probable cause.  [¶] If it be an information: ․  [¶] 2.   That the defendant had been committed without reasonable or probable cause.”Section 1510 provides in pertinent part:  “The denial of a motion made pursuant to Section 995 ․ may be reviewed prior to trial only if the motion was made by the defendant in the trial court not later than 45 days following defendant's arraignment on the complaint if a misdemeanor, or 60 days following defendant's arraignment on the information or indictment if a felony, unless within these time limits the defendant was unaware of the issue or had no opportunity to raise the issue.”  (Italics added.)

4.   We here quote the petition in the present proceeding.   Section 1382 provides in pertinent part:  “The court, unless good cause to the contrary is shown, must order the action to be dismissed in the following cases:  [¶] 1.   Where a person has been held to answer for a public offense and an information is not filed against him within 15 days thereafter․”

THE COURT: * FN* Before CALDECOTT, P.J., and RATTIGAN and POCHÉ, JJ.

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