DRAPER v. PEOPLE (1981)

Petitioner Curtis Clifton Draper (Draper) seeks a writ of prohibition ordering the trial court to desist from prosecuting, and thereafter to dismiss, the misdemeanor charges of one count of resisting a police officer (Pen.Code, s 148) and one count of assault on a police officer (Pen.Code, ss 240, 241) which had been lodged against him.

PROCEDURAL BACKGROUND

On March 18, 1980, Draper was charged in a verified complaint with the above mentioned charges as well as with felony burglary (Pen.Code, s 459).^[FN1] A preliminary hearing was held on April 2, 1980, wherein evidence was received as to the burglary charge which provided probable cause to believe Draper had committed that crime. Although the People had evidence to present as to the misdemeanors, the magistrate concluded that a preliminary hearing on the misdemeanors was not necessary and allowed them to “trail along” with the felony charge.

Draper was arraigned in the superior court on all three counts on April 17, 1980. At that time, he made a motion to dismiss the misdemeanor charges pursuant to Penal Code section 995 on the theory that the magistrate erroneously failed to hear evidence as to the misdemeanors at the preliminary hearing. The motion was denied following a hearing on May 1, 1980. Then on June 26, 1980, the trial court agreed to reconsider the motion. After hearing further argument from counsel, the trial court again denied the motion.

CONTENTION

Draper contends that the trial court erred when it denied his Penal Code section 995 motion to dismiss the misdemeanor charges because no evidence was presented at the preliminary hearing as to those charges.

DISPOSITION

As we conclude for the reasons set forth below that no preliminary hearing is required as to misdemeanors that are charged along with a felony in the same complaint, the issue as to the propriety of a Penal Code section 995 motion to review the preliminary hearing procedure is moot.

DISCUSSION

It is well settled that the superior court has original jurisdiction “where a defendant is charged in the same complaint with both a felony and a misdemeanor offense that are connected in their commission (Citations.)” (Burris v. Superior Court (1974) 43 Cal.App.3d 530, 538, 117 Cal.Rptr. 898.) While a felony charge requires that a preliminary hearing be held to determine whether probable cause exists to believe the defendant committed the charged offense (Pen.Code, ss 859b, 872; In re Geer (1980) 108 Cal.App.3d 1002, 1008-1009, 166 Cal.Rptr. 912), a misdemeanor charge is to be “prosecuted by written complaint under oath subscribed by the complainant.” (Pen.Code, s 740; see People v. Municipal Court (Pellegrino) (1972) 27 Cal.App.3d 193, 201, 103 Cal.Rptr. 645; Childress v. Municipal Court (1970) 8 Cal.App.3d 611, 613-614, 87 Cal.Rptr. 383.)

In the case at bar, the complaint was adequate to support the misdemeanor charges, which were connected to the felony only in the sense that they allegedly took place during Draper's arrest subsequent to the burglary. The misdemeanors were not lesser charges included within the felony and were not so interrelated to the felony as to possibly bring them within the confines of Penal Code section 654's prohibition against multiple prosecution. (See Burris v. Superior Court, supra, 43 Cal.App.3d 530, 539-540, 117 Cal.Rptr. 898; People v. Hardin (1967) 256 Cal.App.2d Supp. 954, 64 Cal.Rptr. 307; cf. People v. McKerney (1967) 257 Cal.App.2d 64, 70, 64 Cal.Rptr. 614.)

Had the magistrate found insufficient evidence to hold Draper on the felony charge, the misdemeanors would have been remanded to the municipal court for trial. (See Burris v. Superior Court, supra, 43 Cal.App.3d at p. 538, 117 Cal.Rptr. 898; People v. McKerney, supra, 257 Cal.App.2d at p. 70, 64 Cal.Rptr. 614; People v. Hardin, supra, 256 Cal.App.2d Supp. at pp. 961-962, 64 Cal.Rptr. 307.) Draper clearly would not have been entitled to a preliminary hearing on the misdemeanors had he been tried in municipal court.

The rationale for requiring a preliminary hearing where a felony is charged is to afford greater protection to those charged with serious crimes. (See Jones v. Superior Court (1970) 4 Cal.3d 660, 667-668, 94 Cal.Rptr. 289, 483 P.2d 1241; People v. Castagnola (1972) 28 Cal.App.3d 882, 886, 105 Cal.Rptr. 62.) The mere fact that in these special circumstances a misdemeanor is being tried in superior court for purposes of judicial economy (see Kellett v. Superior Court (1966) 63 Cal.2d 822, 825-826, 48 Cal.Rptr. 366, 409 P.2d 206) does not change the nature of the charge; the procedure neither deprives the defendant of any substantive rights nor exposes him to a risk of greater punishment for the misdemeanor. (See Burris v. Superior Court, supra, 43 Cal.App.3d at p. 538, 117 Cal.Rptr. 898; People v. McKerney, supra, 257 Cal.App.2d at p. 70, 64 Cal.Rptr. 614; People v. Hardin, supra, 256 Cal.App.2d Supp. at pp. 961-962, 64 Cal.Rptr. 307.)

To require a preliminary hearing as to misdemeanors simultaneously charged with felonies and thus afford such defendants an additional right not received by defendants charged with misdemeanors alone is mandated by neither law nor logic.

The petition is denied. The alternative writ of prohibition is discharged and the stay order issued herein is vacated.

FOOTNOTES

1.  Pursuant to rule 12(a) of the California Rules of Court, we have made the superior court file a part of the record on appeal.

KLEIN, Presiding Justice.

ALLPORT and POTTER, JJ., concur.