PAUL STEPHEN GRIFFITH v. THE PEOPLE (2011)

The 1998 Amendment of Section 737 to Account for Trial Court Unification

With the exception of Thrasher, all of the cases recognizing that misdemeanors charged by information must be supported by a showing of probable cause at the preliminary hearing were issued prior to the 1998 unification of the trial courts.⁶  According to the People, this distinction is determinative because the cases were decided when section 737 stated that “[a]ll public offenses triable in the superior court” had to be tried by information, while the statute now refers only to “felonies.”   The People argue that this change reflects the Legislature's intent to alter the procedure for prosecuting misdemeanors that are joined with felonies.   The Legislature, however, has expressly disavowed such an intent.

In undertaking the daunting and unenviable task of rewriting the Penal Code to accommodate trial court unification, the Legislature added two new definitions.   A “felony case” is now defined as “a criminal action in which a felony is charged and includes a criminal action in which a misdemeanor or infraction is charged in conjunction with a felony,” while a “misdemeanor or infraction case” is defined as “a criminal action in which a misdemeanor or infraction is charged and does not include a criminal action in which a felony is charged in conjunction with a misdemeanor or infraction.” (§ 691, subds. (f) & (g).)  The Law Revision Commission comment accompanying the statute creating these definitions states that “[t]he revision of this and other statutes to accommodate unification of the municipal and superior courts in a county is intended generally to preserve existing procedures for criminal cases by replacing references to superior court criminal cases with references to felony cases, and by replacing references to municipal court criminal cases with references to misdemeanor and felony cases.”  (Cal. Law Revision Com. com., 50 pt.  1 West's Ann. Pen.Code (2008 ed.) foll. § 691, p. 132, italics added.)   The Law Revision Commission Report on the recommended changes further explains that “the Commission has narrowly limited its recommendations to generally preserve existing procedures in the context of unification.   The objective of the proposed revisions is to preserve existing rights and procedures despite unification ․”  (Recommendation:  Trial Court Unification:  Revision of Codes (July 1998) 28 Cal. Law Revision Com. Rep. (1998) p. 60, italics added.)   In other words, it is clear that the purpose of the amendments “was to preserve the status quo concerning the handling of felony and misdemeanor cases.”  (People v. Nickerson, supra, 128 Cal.App.4th at pp. 37–38.)   The Legislature's intent to preserve the status quo regarding the prosecution of “felony cases” such as this one is further reflected in the fact that another statute was revised to state that a “felony case” is to be prosecuted by indictment or information. (§ 949.) ⁷  This statement is consistent with the remainder of the statutory scheme, which plainly reflects that no crime, be it a felony or a misdemeanor, can be included in an information unless it has been supported by a showing of probable cause at the preliminary hearing. (§§ 737–740, 871–872.)  Because the People made no such showing with regard to the charge of being under the influence, petitioner is entitled to have the charge set aside in accordance with section 995.

Let a peremptory writ issue directing the respondent superior court to vacate its order denying petitioner's motion to set aside the information against him with regard to count 2, and enter a new and different order granting said motion.   CERTIFIED FOR PUBLICATION.

PERREN, J.

We concur:

GILBERT, P.J.

COFFEE, J.

Edward F. Brodie, Judge

Superior Court County of Ventura

Stephen P. Lipson, Public Defender, Michael C. McMahon, Chief Deputy, for Petitioner.

No appearance for Respondent.

Gregory D. Totten, District Attorney, Lisa O. Lyytikainen, Senior Deputy District Attorney, for Real Party in Interest.

FOOTNOTES

FN6. “Proposition 220, enacted in 1998, amended the state Constitution to permit the voluntary unification of the municipal and superior courts, and, thereafter, Senate Bill No. 2139 (1997–1998 Reg. Sess.) was enacted to make various statutory changes to implement and conform to the unification of the trial courts pursuant to the constitutional amendment.  [Citations.]”  (Lempert v. Superior Court (2003) 112 Cal.App.4th 1161, 1169, fn. 3.).  FN6. “Proposition 220, enacted in 1998, amended the state Constitution to permit the voluntary unification of the municipal and superior courts, and, thereafter, Senate Bill No. 2139 (1997–1998 Reg. Sess.) was enacted to make various statutory changes to implement and conform to the unification of the trial courts pursuant to the constitutional amendment.  [Citations.]”  (Lempert v. Superior Court (2003) 112 Cal.App.4th 1161, 1169, fn. 3.)

FN7. Section 949 states in pertinent part:  “The first pleading on the part of the people in the superior court in a felony case is the indictment, information, or the complaint in any case certified to the superior court under Section 859a.   The first pleading on the part of the people in a misdemeanor or infraction case is the complaint except as otherwise provided by law.”   Prior to the 1998 amendment, the statute read:  “The first pleading on the part of the people in the superior court is the indictment, information, accusation, or the complaint in any case certified to the superior court under Section 859a or the complaint filed in accordance with the provisions of Section 272.   The first pleading on the part of the people in all inferior courts is the complaint except as otherwise provided by law.”.  FN7. Section 949 states in pertinent part:  “The first pleading on the part of the people in the superior court in a felony case is the indictment, information, or the complaint in any case certified to the superior court under Section 859a.   The first pleading on the part of the people in a misdemeanor or infraction case is the complaint except as otherwise provided by law.”   Prior to the 1998 amendment, the statute read:  “The first pleading on the part of the people in the superior court is the indictment, information, accusation, or the complaint in any case certified to the superior court under Section 859a or the complaint filed in accordance with the provisions of Section 272.   The first pleading on the part of the people in all inferior courts is the complaint except as otherwise provided by law.”