PEOPLE v. HARRIS (1977)

The District Attorney of Alameda County filed a complaint by an Oakland police officer charging real party Reginald Harris with sale of heroin. Before any preliminary examination was held, the grand jury returned an indictment against Harris on the same charge. The district attorney moved for dismissal of the complaint (Pen.Code, § 1385), electing to proceed under the indictment. The magistrate denied the motion to dismiss, set a date for preliminary hearing, and threatened the prosecutor with contempt if he did not proceed with that hearing. The People then sought writ of prohibition to bar further proceedings by the magistrate (defendant-respondent Levins) and mandate to require dismissal of the complaint. After hearing, the superior court denied peremptory writs. The People appeal.

‘Felonies shall be prosecuted * * *, either by indictment or, after examination and commitment by a magistrate, by information.’ (Cal.Const., art. 1, § 14.) ‘Although there are differences between the two procedures, a defendant who is proceeded against by an indictment is not denied due process or equal protection [citations]. It similarly does not violate due process to initiate a prosecution by an information rather than an indictment [citations].’ (People v. Sirhan, 7 Cal.3d 710, 746–747, 102 Cal.Rptr. 385, 410, 497 P.2d 1121, 1146.)

The magistrate's denial of the prosecution motion to dismiss, and his insistence upon real party's right to preliminary examination, turned largely upon his view that due process and equal protection require that he have the right of confrontation and cross-examination (as well as to urge ‘affirmative defenses' never specified), even after indictment. As pointed out above, this view is flatly contradicted by the earlier decision of the Supreme Court in Sirhan, and the long line of authority there relied upon.

The magistrate's view stemmed wholly from his reliance upon a concurring minority opinion. (Johnson v. Superior Court, 15 Cal.3d 248, 255–270, 124 Cal.Rptr. 32, 539 P.2d 792.) But the majority opinion (15 Cal.3d 248, 255, 124 Cal.Rptr. 32, 539 P.2d 792) obviously disagrees. Prosecution of Johnson for an August 1973 narcotics violation was commenced by complaint. Preliminary hearing was held. Johnson testified that he had been arrested in March 1973 on three narcotics charges. At the request of a deputy district attorney, Johnson agreed to cooperate in seeking information concerning other narcotics dealers. He was permitted to plead guilty to one March posession charge, and probation and sentence hearing were continued to give him time to ‘produce’. The day after this hearing, he acted solely with the intention of informing upon others, but was himself arrested on a conspiracy charge. The magistrate believed this explanation, and dismissed the August complaint, refusing to hold Johnson to answer. Thereafter, the prosecution submitted the matter to the grand jury but did not inform it of the exculpatory evidence of defendant, and also created the false impression that petitioner ‘would refuse to testify if called.’ (P. 253, 124 Cal.Rptr. p. 35, 539 P.2d p. 795.) The Johnson majority (5 justices) pointed to section 939.7 of the Penal Code, which directs that when the grand jury ‘has reason to believe that other evidence within its reach will explain away the charge, it shall order the evidence to be produced.’ The majority held that ‘when a district attorney seeking an indictment is aware of evidence reasonably tending to negate guilt, he is obligated under section 939.7 to inform the grand jury of its nature and existence,’ (p. 255, 124 Cal.Rptr. p. 36, 539 P.2d p. 796). The two-justice minority concurred in the result, but termed it a mere ‘palliative measure’, and asserted ‘constitutional infirmity in the grand jury's indicting function * * * an ailment which can be cured only by allowing every indicted defendant a post-indictment preliminary hearing as a matter of right.’ (P. 256, 124 Cal.Rptr. p. 37, 539 P.2d p. 797.) As has recently been pointed out, the majority in Johnson did not alter the long standing rule, and the minority opinion does not constitute authority under the doctrine of stare decisis (People v. Superior Court [Persons], 56 Cal.App.3d 191, 194, 128 Cal.Rptr. 314). The Supreme Court denied hearing in Persons, with only the two minority justices of Johnson recording votes for hearing.

In the case at bench, the superior court, although obviously influenced by the Johnson minority, based its denial of relief upon a different ground. The court conceded that the prosecutor may choose to proceed either by complaint or by indictment, but ruled that, having elected to proceed by complaint, he could not deprive the charged defendant of his right to preliminary hearing. But rejection of this view, also, is implied by the majority holding in Johnson. There, the prosecution not only initiated the criminal proceeding by complaint, but went through complete preliminary hearing, only to have the complaint dismissed and commitment denied. The Supreme Court, on a ground not relevant to the facts before us, prohibited trial under that indictment. But it specified that ‘[t]he writ issues without prejudice to the district attorney's continuing to prosecute these charges by seeking another indictment, or by filing another complaint.’ (15 Cal.3d at p. 255, 124 Cal.Rptr. at p. 36, 539 P.2d at p. 796.) Thus, despite initial election to proceed by complaint, and actual conduct of the preliminary, the prosecutor was allowed to alter his election. A fortiori, such change of procedure is allowed when, as here, the proceeding is initiated by complaint, but the election of the alternate procedure precedes any preliminary hearing. The point seems emphasized by a decision (People v. Uhlemann, 9 Cal.3d 662, 666, 108 Cal.Rptr. 657, 511 P.2d 609) cited in Johnson. Neither respondent nor real party cites, and we find, no authority supporting the view that mere commencement of a proceeding by complaint bars indictment by the grand jury. The practice in California has uniformly been to permit such change as a matter of course, and to dismiss the complaint when the indictment is filed. The absence of case law specifically dealing with such change of election before the preliminary is held but emphasizes the lack of merit in the present attack.

The magistrate's requirement of a post-indictment preliminary hearing was an act in excess of his jurisdiction and is subject to restraint by prohibition. (People v. Superior Court [Persons], supra; Auto Equity Sales, Inc. v. Superior Court, 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937; Abelleira v. District Court of Appeal, 17 Cal.2d 280, 291, 109 P.2d 942.) In light of that bar, mandate must issue to require dismissal of the complaint.

Judgment reversed, with directions to the superior court to issue writs of prohibition and mandate as prayed.

DRAPER, Presiding Justice.

SCOTT and DEVINE,* JJ., concur.