BLOOM v. PEOPLE

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

Noel C. BLOOM, Petitioner and Appellant, v. MUNICIPAL COURT OF the INGLEWOOD JUDICIAL DISTRICT, COUNTY OF LOS ANGELES, Respondent; The PEOPLE of the State of California, Real Party in Interest and Respondent.

Civ. 41551.

Decided: December 19, 1973

Fleishman, McDaniel, Brown & Weston, by John H. Weston, Los Angeles, for petitioner and appellant. No appearance on behalf of respondent Municipal Court of the Inglewood Judicial District. Joseph P. Busch, Dist. Atty. of Los Angeles County, Harry B. Sondheim, Acting Head, Appellate Div., Los Angeles, and Dick L. Hudson, Deputy Dist. Atty., for real party in interest and respondent.

Noel Bloom petitioned the Los Angeles Superior Court for a writ of prohibition to restrain the Inglewood Municipal Court from proceeding on a criminal complaint that charged him with possession of an obscene film with intent to distribute and exhibit it to others. (Pen.Code, § 311.2.) The superior court denied the writ. Bloom appeals the ‘judgment and order,’ contending ing that in the circumstances of his cas prosecution under section 311.2 would violate late his constitutional rights.

I

We first consider the procedural appropriateness of an appeal from a denial by the superior court of a writ to prohibit prosecution of a criminal cause in the municipal court. Although courts have generally assumed the availability of the remedy of appeal from a refusal of the superior court to prohibit a criminal prosecution in a lower court (see Mihans v. Municipal Court, 7 Cal.App.3d 479, 483, 87 Cal.Rptr. 17; Castaneda v. Municipal Court, 25 Cal.App.3d 588, 591–592, 102 Cal.Rptr. 230) the continued propriety of this remedy in criminal matters has not been reviewed in the light of the 1966 revision of the judicial article of the Constitution, article VI which expanded the scope of extraordinary writs. Since a principal purpose of the extensive revision of article VI was to simplify and rationalize the operation of the state's judicial machinery with respect to its use of extraordinary writs, it is appropriate for us to consider what is proper procedure for appellate review of a superior court refusal to issue prohibition against a lower court in a criminal cause.1

We begin by examining the judicial article of the Constitution as it existed in 1904 at the time of the creation of courts of appeal, then named district courts of appeal. In its initial formulation of the relationship between superior courts and courts of appeal the Constitution specifically included within the latter's appellate jurisdiction appeals from rulings on writs of prohibition by the superior court. Article VI, section 4, granted courts of appeal ‘appellate jurisdiction on appeal from the Superior Courts . . . in proceedings of . . . prohibition.’ That article, however, did not explicitly authorize courts of appeal to issue original writs of prohibition, for it merely stated that ‘[t]he said courts shall also have power to issue writs of . . . prohibition . . . and all other writs necessary or proper to the complete exercise of their appellate jurisdiction.2 (Italics added.) In 1928 these provisions of the Constitution were transferred to article VI, section 4b.

It may be seen that under the terminology of the 1904 amendment to the Constitution courts of appeal were (1) explicitly given appellate jurisdiction over appeals from the superior court on writs of prohibition, but (2) not explicitly given original jurisdiction to issue writs of prohibition except as an adjunct to their exercise of appellate jurisdiction. Appellate jurisdiction and original jurisdiction are contraries and perhaps mutually exclusive, and the question remained open whether the remedy of original writ in the court of appeal could be used when the remedy of appeal from the superior court was available. Some courts construed the authority of courts of appeal as not fully comprehending the issuance of an original writ of prohibition after the writ had been denied by the superior court, this by reason of the availability of the remedy of appeal from the denial of prohibition. (Reilly v. Police Court, 194 Cal. 375, 378, 228 P. 860; Paige Co. of N. Cal. v. Superior Court, 194 Cal. 795, 796, 231 P. 344; Ogden v. Board of Trustees, 74 Cal.App. 159, 239 P. 855; Lickley v. County Board of Education, 62 Cal.App. 527, 529, 217 P. 133; Lambert v. Municipal Court, 174 Cal.App.2d 601, 602, 345 P.2d 98; Blumenthal v. Municipal Court, 176 Cal.App.2d 865, 1 Cal.Rptr. 757.) Other courts took a different view (Caputo v. Municipal Court, 184 Cal.App.2d 412, 420–421, 7 Cal.Rptr. 435).

In 1966 the judicial article of the Constitution was completely rewritten. Under this revision (1) specific mention of the court of appeal's appellate jurisdiction in prohibition disappeared; and (2) specific authority for the court of appeal's original jurisdiction in prohibition was given. These changes were brought about by repeal of article VI, section 46, by enactment of article VI, section 11, giving courts of appeal appellate jurisdiction when superior courts have original jurisdiction, and by enactment of article VI, section 10, giving courts of appeal ‘original jurisdiction in proceedings for extraordinary relief in the nature of . . . prohibition.’ Thus, the literal text of the 1966 constitutional scheme for issuance of writs of prohibition by courts of appeal became the precise opposite of what it had been in 1904. Formerly, courts of appeal had been explicitly given appellate jurisdiction in prohibition but had not been specifically given original jurisdiction in prohibition. Under the 1966 revision courts of appeal were explicitly given original jurisdiction in prohibition but not specifically given appellate jurisdiction in prohibition. These provisions have continued without change to the present.

This shift in delineation and phraseology with respect to issuance of writs of prohibition by courts of appeal appears to recognize the extraordinary nature of the writ, its summary aspect, and its exclusive character as a remedial tool divorced from claim of right. The constitutional change in emphasis and tone from appellate use to original use also suggests that in extraordinary writ procedure the direct remedy of original application is now favored over the indirect remedy of appeal, undoubtedly for the reason that the indirect remedy has proved itself in practice to be awkward, cumbersome, dilatory, and slow. These drawbacks are especially hurtful when they directly affect the administration of criminal justice, as is the case when prohibition is sought in a higher court to prevent a lower court from hearing a pending criminal cause.

However, the recent changes in the text of the constitutional judicial article do not furnish a conclusive outline of proper appellate court procedure for handling pretrial writs involving criminal causes, and to obtain further enlightenment we turn to the civil and criminal statutes that have supplemented the provisions in the Constitution governing appeals and writs of prohibition.

First, the civil provisions. Here, as in the Constitution, we find specific pre-1966 authority for review by appeal of superior court action on writs of prohibition. The Code of Civil Procedure declared in 1872 that an appeal may be taken from a superior court from ‘a final judgment . . . in an action, or special proceeding . . .’ (§ 963), and it classified an application for prohibition as a ‘special proceeding.’ (§§ 1064, 1102–1105.) Thus superior court rulings on writs of prohibition were made specifically appealable. But subsequent to the 1966 revision of article VI of the Constitution, section 963 of the Code of Civil Procedure was replaced by section 904.1, which eliminated the former reference to ‘special proceeding,’ and merely declared that ‘[a]n appeal may be taken from a superior court . . . [f]rom a judgment . . .’ The deletion of ‘special proceeding’ from the basic statute governing civil appeals thus reduced the direct statutory authority for civil appeals in prohibition to that found in Code of Civil Procedure section 1110, enacted in 1872, which states ‘The provisions of Part 2 of this Code [entitled Of Civil Actions] relative to new trials and appeals, except in so far as they are inconsistent with the provisions of this Title [of Writs of Review, Mandate, and Prohibition], apply to proceedings mentioned in this Title.’

While not too much content should be read into these relatively narrow constitutional and statutory changes in terminology, still the changes suggest that in civil litigation some diminution in the appealability of orders relating to prohibition and some increase in the use of original writs has occurred. The extent to which this has taken place and the extent to which denials of writs of prohibition in purely civil litigation remain appealable need not concern us here, for our business is with criminal litigation. We merely note the trend in civil litigation, and turn our attention to the pertinent statutory provisions relating to the use of appeals and writs in criminal proceedings.

What is the relevance of criminal procedure to our determination of the proper use of prohibition in the present cause? The answer, quite simply, is that the subject matter of the litigation before the court comprises criminal matter and involves a criminal cause even though the immediate remedial tool sought by petitioner is classified as an instrument of the civil law. Because we are dealing with litigation that is essentially criminal the constitutional and statutory imperatives of criminal procedure are available for the parties' use. (Cf. Rodriguez v. Municipal Court, 25 Cal.App.3d 521, 525, 102 Cal.Rptr. 45, waiver of rights may not be presumed from a silent record in a mandamus proceeding that relates to a criminal prosecution.) It follows that when writ procedure operates on criminal matter, it must comply with relevant requirements of criminal law, for, obviously, criminal safeguards may not be circumvented by classification of a particular phase of criminal litigation as civil in nature.

When the present cause is viewed in its proper setting within the criminal law, two important aspects of the litigation come into focus, both of which relate to the element of time. First, is the notion of expeditious trial, a concept central to the criminal process. An accused's right to a speedy trial is both well understood and widely publicized (Cal.Const., art. I, $ 13). Not so well known but of equal importance to the administration of justice is the People's right to an expeditious trial. This latter policy finds expression in section 1050 of the Penal Code, which declares, ‘The welfare of the people of the State of California requires that all proceedings in criminal cases shall be set for trial and heard and determined at the earliest possible time, and it shall be the duty of all courts and judicial officers and of all prosecuting attorneys to expedite such proceedings to the greatest degree that is consistent with the ends of justice. . . .’ Clearly, the concept of speedy and expeditious trial takes into account the interests of both parties involved, for it envisages not only the protection of the accused against accusation and punishment without trial and judgment, but also the protection of the accuser and of society against justice delayed so long as to become justice denied. The state is an interested party to the present litigation, and because criminal matter is involved both the state and petitioner can claim the right to an expeditious trial.

The second aspect of the litigation that derives from its criminal character is the notion of expeditious disposition of appeal, or, more broadly stated, expeditious disposition of appellate review. This policy is specifically articulated in such legislation as the following: ‘On an appeal in a criminal case, no continuance shall be granted upon stipulation of counsel, and no continuance shall be granted for any longer period than the ends of justice shall require. . . .’ (Pen.Code, § 1252.) The policy of bringing criminal matters promptly to final judgment is also apparent in the design of the entire system of criminal appeals, whose keystone is found in its restriction of criminal appealability to rulings that permanently dispose of the matter. Criminal appeals are allowable only from orders that terminate the cause before trial, from final judgments of conviction and from specified orders after trial or judgment. (Pen.Code, §§ 1237, 1238.) Criminal appeals from pretrial orders refusing to terminate the cause are not allowable, and in such instances the sole available remedy is an application for extraordinary writ. (See Pen.Code, § 999a and § 1538.5(i), which authorize review by extraordinary writ of superior court refusals to set aside an accusation or suppress evidence.) Both the policy against trial delay and that against appellate delay are promoted by the limitation of pretrial appeals in criminal matters to rulings that dispose of the cause, i. e., final judgments. All other orders in criminal proceedings, including those that result from collateral attacks, are reviewable in advance of trial only by extraordinary writ. Thus if the present litigation is considered solely in its criminal setting, the remedy of appeal from the denial of a pretrial writ is inapposite, for in a criminal matter pretrial appeal is allowable only from an order that disposes of the accusation.

To summarize our discussion of general law, we find (1) the Constitution no longer makes a denial of prohibition by the superior court specifically appealable, and it now seems to favor the use of original writs; (2) changes in the Code of Civil Procedure suggest some diminution of the use of appeal in special proceedings; and (3) the Penal Code reflects a strong public policy against pretrial appeals in criminal matters and against delay in the disposition of criminal causes.

Of generalized statements of the law of some relevance to the issue, there remains for consideration article VI, section 11 of the Constitution, which gives courts of appeal appellate jurisdiction when superior courts have original jurisdiction. It can be argued that since superior courts have original jurisdiction to issue writs of prohibition their denials of the writ are appealable in all instances. While this argument may be fully persuasive in civil litigation, manifestly we are not concerned here with strictly civil litigation but with criminal litigation in which a civil remedy has been sought. Appellate jurisdiction in criminal causes implies the existence of a judgment, and a judgment implies some final disposition of the subject matter. The denial of a writ to prohibit prosecution of a criminal cause does not result in a judgment terminating the litigation, for in the fundamental sense of judgment as a final determination of the rights of the parties (Civ.Code Proc., § 577) no judgment has been had. Clearly, the denial of a writ of prohibition in what is essentially criminal litigation merely closes out activity in the superior court and moves the litigation back to its initial arena, the municipal court. The substance of what has happened is comparable to the denial of a motion to set aside an accusation (Pen.Code, § 995) and bears no resemblance to the ‘final judgment’ that is prerequisite to the appeal of a criminal cause (Pen.Code, § 1237). We do not believe the general language of article VI, section 11, was designed to overturn the basic structure of appellate jurisdiction requiring final disposition of a cause as a prerequisite to its appeal, nor do we think the section was intended to make very application to the superior court for an extraordinary writ automatically appealable to the court of appeal.

Necessarily, any procedure for the disposition of litigation which is criminal in substance but civil in form must be hybrid in result. In order to work out a griminess pattern from a somewhat tangled procedural skein we must construe the relevant constitutional and statutory provisions in a manner that will achieve as closely as possible the basic objective of a sound procedure—in this instance the fullest consideration of the collateral issue consistent with the least sacrifice of momentum in the principal cause. In evaluating the appropriateness of pretrial appellate remedies in criminal litigation, it seems obvious there is no necessity for both the remedy of appeal and the remedy of original writ. One remedy or the other has always existed, but we find no sound reason in criminal administration for the existence of both. From past practice it seems clear that the remedies of original writ and of appeal have been considered alternatives and mutually exclusive. [Reilly v. Police Court, 194 Cal. 375, 228 P. 860 (appeal on denial of prohibition forecloses use of original writ); Paige Co. of N. Cal. v. Superior Court, 194 Cal. 795, 231 p. 344 (right to apply for hearing in Supreme Court on denial of prohibition forecloses application for original writ); In re Chessman, 44 Cal.2d 1, 7, 279 P.2d 24 (availability of appeal forecloses use of writ of certiorari).] We think that in criminal litigation these two remedies continue to be mutually exclusive.

In weighing the appropriateness of the remedy of appeal as opposed to that of original writ in criminal litigation, we find persuasive the practice followed in the disposition of pretrial writs of habeas corpus in criminal proceedings. Here, too, we are dealing with the use of a civil remedy to affect the outcome of a criminal cause. Like prohibition directed against a criminal cause, the preconviction writ of habeas corpus has as its dominant purpose the forestalling of a particular criminal prosecution. The denial of the pretrial writ of habeas corpus by the superior court in a criminal matter, both when the underlying cause is pending in the same court and when it is pending in some other court, is conclusive and may not be appealed. (In re Flodstrom, 45 Cal.2d 307, 308–310, 288 P.2d 859; Loustalot v. Superior Court, 30 Cal.2d 905, 913, 186 P.2d 673; Matter of Ring, 28 Cal. 247, 251; People v. Brotherton, 239 Cal.App.2d 195, 199, 48 Cal.Rptr. 513; Gardner v. California (1969) 393 U.S. 367, 368, 89 S.Ct. 580, 21 L.Ed.2d 601; Pen.Code, § 1506.) The form of appellate review available to a criminal defendant whose application for habeas corpus has been denied in the superior court is a new application for the writ in an appellate court. (People v. Griggs, 67 Cal.2d 314, 417, 61 Cal.Rptr. 641, 431 P.2d 225; Pen.Code, § 1475.) On the other hand, if the defendant has prevailed in the superior court and the writ of habeas corpus has been granted, the People are entitled to appeal, for no further proceedings in the underlying criminal litigation can be had. Pen.Code, §§ 1238, 1506.) In such circumstances appeal is allowable, for the grant of the writ amounts to a final disposition of the cause.

In view of the striking similarity in function between prohibition in criminal causes and pretrial habeas corpus, we think similarity in procedure is warranted. As with habeas corpus, when a writ of prohibition to forestall a pending criminal prosecution in the municipal court is denied by the superior court, a criminal defendant desiring further review must make a new application for the writ in the appellate court. But if the writ of prohibition is granted by the superior court, then review by means of appeal is appropriate, for in the latter instance the prosecution in the municipal court has been effectively terminated, finality has come to the underlying criminal litigation, and appeal can take its course without disrupting a pending criminal prosecution. Such a procedure in both habeas corpus and prohibition harmonizes with the basic design in the Penal Code that limits pretrial appeals in criminal matters to orders that make a final disposition of the underlying criminal cause. We conclude that the changes in the judicial article of the Constitution have substituted the remedy of original writ for that of appeal in reviewing superior court denials of extraordinary writs to forestall pending criminal prosecutions. The shift from the remedy of appeal to that of original writ, far from being innovative, merely reflects a return to an earlier view of prohibition as a summary, original, remedial, and final writ.3

Original writ procedure now provides an expeditious method for appellate review of superior court of prohibition when sought to forestall criminal prosecutions. Petitions for extraordinary writs are customarily acted upon by this court within periods of days or weeks rather than months or years as is the case with appeals. Original writ procedure avoids both the legal embarrassment of entry of final judgment on the merits of a criminal cause while an appeal from the denial of a writ of prohibition is pending, as happened in Baker v. Municipal Court, 198 Cal.App.2d 556, 17 Cal.Rptr. 642, and in Lambert v. Municipal Court, 179 Cal.App.2d 682, 3 Cal.Rptr. 894, and the obverse embarrassment of a criminal proceeding stalled for years without good cause.4

We conclude that the appropriate pretrial remedy for a criminal defendant who has unsuccessfully sought a writ in the superior court to prohibit his prosecution in the municipal court, lies in an application to the court of appeal for an original writ and not in appeal to that court from a denial of the writ. We therefore treat these proceedings as an original application for a writ of prohibition in which an alternative writ has been issued and hearing granted.

II

The prosecution in the municipal court is for violation of Penal Code section 311.2(a), which provides: ‘Every person who knowingly sends or causes to be sent, or brings or causes to be brought, into this state for sale or distribution, or in this state possesses, prepares, publishes, or prints, with intent to distribute or to exhibit to others, or who offers to distribute, distributes, or exhibits to others, any obscene matter is guilty of a misdemeanor.’

The relevant facts in the prosecution have been stipulated:

‘1) Los Angeles Sheriff's Deputies received in a blank envelope with no return address addressed to Los Angeles Sheriff's Vice Bureau, Pornography Division, 501 North Main Street, Los Angeles, two identical color brochures.

‘2) The brochures advertised 8mm films and contained a detachable order form for use in ordering such films.

‘3) Sheriff's officers ordered a film using the form provided. The film was ordered pursuant to the enclosed form. On the form was a statement declaring that the purchaser was an adult, over the age of 21, and that the requested material was for his own personal use.

‘4) The sheriff's deputy, who was the purchaser, signed the brochure at the place indicated for the signature of the recipient indicating assent to and compliance with the aforesaid statement. He mailed the order and included the requested funds to the address given in the brochure.

‘5) Subsequently, in response to the request and remittance, a film, the subject of the instant prosecution, was mailed to and received by the Sheriff's purchaser.

‘6) The sheriff's deputy was, in fact, at all times an adult over the age of 21.

‘7) The remittance was made payable to a California corporation, with which the defendant herein had a connection.’

Bloom contends: (1) federal statutes pre-empt state prosecution of distribution of obscene matter through the mails; (2) the right of privacy protects the acts prosecuted here; section 311.2 violates (3) due process of law, equal protection of the laws, (4) free speech, and (5) the prohibition against the establishment of religion; and (6) the complaint improperly alleges distribution and exhibition of obscene matter in the same count.

We find no merit in any of these contentions:

1. Federal Pre-emption. The ‘limits of state regulatory power in relation to the federal mail service involve situations where state regulation involved a direct, physical interference with federal activities under the postal power or some direct, immediate burden on the performance of the postal functions. . . .’ (Railway Mail Ass'n v. Corsi, 326 U.S. 88, 96, 65 S.Ct. 1483, 1488, 89 L.Ed. 2072.) Section 311.2 as applied to conduct involving obscene matter sent through the mail, creates no ‘direct, immediate burden on the performance of the postal functions.’ Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 2611, 37 L.Ed.2d 419, 426–427, fn. 1.)

2. Privacy. The ‘commercial exposure and sale of obscene materials to anyone, including consenting adults, is subject to state regulation.’ (Kaplan v. California, 413 U.S. 115, 120, 93 S.Ct. 2680, 2685, 37 L.Ed.2d 492, 498.) ‘[C]ommerce in obscene material is unprotected by any constitutional doctrine of privacy.’ (Paris Adult Theatre I v. Slaton, 413 U.S. 49, 69, 93 S.Ct. 2628, 2642, 37 L.Ed.2d 446, 464.)

3. Due Process and Equal Protection. Miller v. California, 413 U.S. 15, 27, 93 S.Ct. 2607, 2616, 37 S.Ed.2d 419, 432–433, holds that a statute which proscribes the sale of materials depicting ‘patently offensive ‘hard core’ sexual conduct' provides ‘fair notice to a dealer in such materials that his public and commercial activities may bring prosecution.’ Section 311.2, as construed by California courts, meets the Miller test. (People v. Enskat, 33 Cal.App.3d 900, 908, 909, 109 Cal.Rptr. 433 (hearing denied).) ‘The mere fact juries may reach different conclusions as to the same material does not mean that constitutional rights are abridged.’ (Miller v. California, 413 U.S. 15, 26, 93 S.Ct. 2607, 2616, 37 L.Ed.2d 419, 432, fn. 9.)

4. Free Speech. The right to freedom of speech does not protect obscene material. (Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498; Landau v. Fording, 245 Cal.App.2d 820, 823, 54 Cal.Rptr. 177.)

The California Constitution, article I, section 9,5 gives no broader freedom of speech to California citizens that than does the United States Constitution, Amendment I.6 Rather, the ‘abuse’ clause in the California Constitution was intended only to make clear that the right of free speech does not guarantee immunity from liability to those who abuse it. (Werner v. Southern Cal.Etc. Newspapers, 35 Cal.2d 121, 124–125, 216 P.2d 825; cf. Dailey v. Superior Court, 112 , Cal. 94, 97–98, 44 P. 458.)

Article I, section 9, of the California Constitution derived from article VII, section 8, of the New York Constitution of 1821, and is traceable to a pre-federal Constitution document, the Pennsylvania Constitution of 1776, P.S. Declaration of Rights, clause 12, which provided that ‘the people have a right to freedom of speech, and of writing, and publishing their sentiments; therefore the freedom of the press ought not to be restrained.’ The differing formulations of the right to freedom of speech found in the California and federal Constitutions clearly embody the same basic concept and provide co-extensive protection. (Chaffee, Free Speech in the United States, p. 5, n. 2; Browne, Report of the Debates of the Convention of California, pp. 31, 41; Thorpe, Federal and State Constitutions, vol. 5, p. 3083.)

5. Establishment of Religion. ‘The sum of experience, including that of the past two decades, affords an ample basis for legislatures to conclude that a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality, can be debased and distorted by crass commercial exploitation of sex. Nothing in the Constitution prohibits a State from reaching such a conclusion and acting on it legislatively simply because there is no conclusive evidence or empirical data.’ (Paris Adult Theatre I v. Slaton, 413 U.S. 49, 63, 93 S.Ct. 2628, 2638, 37 L.Ed.2d 446, 460.)

6. The Complaint. Section 311.2(a) defines one offense which may be committed by any of a series of acts or by several of those acts in conjunction. When an offense is so defined, the commission of several of the acts which may constitute the crime may be alleged in a single count, and only one crime is charged. (People v. Horiuchi, 114 Cal.App. 415, 427, 300 P. 457; People v. McClennegen, 195 Cal. 445, 452, 234 P. 91.)

A writ of prohibition is denied.

FOOTNOTES

1.  In commenting upon the proposed constitutional revision of the judicial article, Chief Justice Phil S. Gibson stated that ‘in addition to a more intelligent distribution of original and appellate jurisdiction of the courts, there is also an urgent need for more logical and consistent rules in regard to the review of court proceedings by the use of an extraordinary writ. . . .’ Gibson, ‘The California Constitution and Its Judicial Article,’ 29 So.Cal.L.Rev. 389, 397.In the 1966 comments to proposed article VI, section 10, the Constitution Revision Commission stated: ‘The Commission deliberately broadened the constitutional language relating to jurisdiction in extraordinary writ proceedings. In place of the restrictive language formerly appearing in the Constitution, the language used in Section 10 is phrased in such a way as to permit the courts to grant ‘extraordinary relief in the nature of’ the historical common law writs. The flexibility thus granted by this constitutional language leaves room for a modernization of the procedure followed in connection with those extraordinary writs,' Judicial Council of California, 1967 Annual Report to the Governor and the Legislature, p. 75.

2.  An 1880 construction of the then constitutional language defining the jurisdiction of the Supreme Court [‘the court shall also have power to issue writs of mandamus . . . and all other writs necessary or proper to the complete exercise of its appellate jurisdiction’] concluded that this language in the 1879 Constitution empowered the Supreme Court to issue original writs of mandamus. In reaching its conclusion the court relied heavily on an explicit grant of original jurisdiction to issue extraordinary writs contained in the predecessor constitutional provision of 1862, a grant the court thought carried over by implication into the new constitution. (Hyatt v. Allen, 54 Cal. 353.) Four years later the Supreme Court ruled that by implication and by repeated usage the court also possessed appellate jurisdiction in cases of mandamus. (Palache v. Hunt, 64 Cal. 473, 2 P. 245.)

3.  For historical practice see People ex rel. Adams v. Westbrook, 89 N.Y. 152 (1882), (grant of writ of prohibition is discretionary, and a refusal to grant is not appealable); and Bishop of St. David's v. Lucy (1699) 91 English Reports 126, 127, 1260, 1264, (refusal of King's Bench to issue prohibition against the ecclesiastical courts is not reviewable by writ of error in the House of Lords). Under English practice as codified in the Judicature Act of 1873, no appeal lies in a criminal cause or matter from the denial of a writ of habeas corpus (Ex parte Alice Woodhall [1888] 20 Q.B.D. 832) or from the denial of a writ of prohibition (King v. Garrett [1917] 2 K.B. 99). See also 11 Halsbury's Laws of England, 3d ed. 1955 P. 49 (habeas corpus), pp. 81–82 (prohibition).

4.  Unjustifiable delays resulting from appeals from denials of writs of prohibition cas be profligate. At bench, the criminal complaint against Bloom was filed in the municipal court in January 1972. In July 1972 the municipal court overruled Bloom's demurrers, denied his motions to dismiss, and set the cause for trial that same month. On the day of trial Bloom filed a petition for writ of prohibition in the superior court, and that court issued an alternative writ temporarily restraining the prosecution pending a hearing. In August 1972 the superior court denied a writ of prohibition, and Bloom filed a notice of appeal. Eight months later Bloom filed his brief on appeal. Four months later respondent filed its brief. This court scheduled oral argument on the cause for November 1973 and subsequently denied Bloom's application to vacate the date of the hearing. Shortly before the November hearing date Bloom waived his right to submitted without further argument. Nearly two years have elapsed without trial since the crime was charged.This cause does not furnish an isolated instance of protracted delay, for similar delays regularly occur in other causes. For example, in Ganz v. Justice Court, 273 Cal.App.2d 612, 78 Cal.Rptr. 348, a defendant successfully delayed for a period of two years his prosecution in the justice court for failure in August 1967 to yield the right of way at an intersection (Veh.Code, § 21800), an offense that carries a standard recommended panel of $15 (Cal.Rules of Court, rule 850). Defendant demanded a jury trial in the justice court and then sought a writ of prohibition in the superior court to prevent the trial of the cause on the ground that selection of the jury panel from lists of registered voters discriminated against persons with Spanish surnames. On the denial of the writ of prohibition by the superior court in June 1968 defendant appealed the denial to the court of appeal, and the latter court affirmed the decision of the superior court in June 1969.

5.  ‘Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press. . . .’

6.  ‘Congress shall make no law . . . abridging the freedom of speech. . . .’

FLEMING, Associate Justice.

ROTH, P. J., and COMPTON, J., concur.

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