HOLMAN v. PEOPLE (1980)

This petition seeks a writ compelling the Monterey County Superior Court to nullify an order in the municipal court denying pre-preliminary hearing discovery. Both the municipal court judge and the superior court concluded that the decision in People v. Peters (1978) 21 Cal.3d 749, 147 Cal.Rptr. 646, 581 P.2d 651, deprived the municipal court judge of the authority to order such discovery. We have concluded that they read too much from Peters.

Prior to the Peters decision several opinions suggested that a defendant was entitled to discovery before or during the preliminary hearing. (See, e. g., Theodor v. Superior Court (1972) 8 Cal.3d 77, 90, 104 Cal.Rptr. 226, 501 P.2d 234; Mitchell v. Superior Court (1958) 50 Cal.2d 827, 829, 330 P.2d 48; Saulter v. Municipal Court (1977) 75 Cal.App.3d 231, 248, fn. 4, 142 Cal.Rptr. 266.) The same view has been expressed in opinions filed subsequent to Peters. (See, e. g., People v. Hertz (1980) 103 Cal.App.3d 770, 776-777, 163 Cal.Rptr. 233; Younger v. Municipal Court (1980) —- Cal.App.3d —-, 167 Cal.Rptr. 470 (80 Daily Journal D.A.R. 2530, filed August 28, 1980.)

The People take the position, however, that Peters changed the law of discovery. Peters dealt with the narrow issue of whether a magistrate was a “court” within the meaning of Penal Code section 1385, which authorized a “court” to “in furtherance of justice, order an action to be dismissed.” Nothing was said in Peters about discovery prior to or in connection with the preliminary hearing. The municipal court's authority to order such discovery was left completely intact by the Peters decision.

We express no opinion concerning the propriety of the particular discovery request in this case. Since the municipal court judge concluded he had no jurisdiction to order discovery he did not determine the propriety of the request. Such a determination may be made upon reconsideration after the order denying discovery is annulled.

We have reached our conclusion after full briefing by the parties. Issuance of an alternative writ would only cause further undue delay in the preliminary hearing. We therefore issue a peremptory writ in the first instance. (Code Civ.Proc., s 1088; San Diego Wholesale Credit Men's Assn. v. Superior Court (1973) 35 Cal.App.3d 458, 110 Cal.Rptr. 657; Goodenough v. Superior Court (1971) 18 Cal.App.3d 692, 697, 96 Cal.Rptr. 165.)

Let a peremptory writ of mandate issue directing the Monterey County Superior Court to vacate its order of June 27, 1980 denying writ of mandate and to enter such order as will have the effect of compelling the Monterey County Municipal Court to reconsider petitioner's request for discovery in light of the views expressed herein.

WHITE, Presiding Justice.

SCOTT and FEINBERG, JJ., concur.