PEOPLE v. MAYNARD II (1984)

OPINION

Defendant Larry Maynard was charged with possession of cocaine (Health & Saf.Code, § 11350) and possession of cocaine for sale (Health & Saf.Code, § 11351).   The trial court granted Maynard's motion to dismiss (Pen.Code, § 995) and the People have appealed.

This case has been pending for nearly five years.   Maynard has gone through two completed preliminary hearings in the Harbor Judicial District, the start of a preliminary hearing in the Central Judicial District, a grand jury proceeding, and a prior appeal.   The case has been dismissed three times and a demurrer was sustained once.

Maynard made a motion to dismiss based on prosecutorial harassment and forum shopping before the commencement of his third preliminary hearing.   The magistrate thought he did not have jurisdiction to hear the motion relying on People v. Peters (1978) 21 Cal.3d 749, 147 Cal.Rptr. 646, 581 P.2d 651.   Although he erroneously denied the motion on jurisdictional grounds, he commented on the “unabashed harassment and abuse of prosecutorial powers.”   Both municipal and superior court judges have repeatedly attempted to dispose of this case and, by affirming, we hope to terminate it once and for all.

I

Did the Magistrate Have Jurisdiction to Hear the Motion to Dismiss?

 The jurisdictional issue arose as a result of the aberrational case of People v. Peters (1978) 21 Cal.3d 749, 147 Cal.Rptr. 646, 581 P.2d 651.   Prior to Peters, magistrates had the power to hear and determine motions to dismiss.  (Landrum v. Superior Court (1981) 30 Cal.3d 1, 13, 177 Cal.Rptr. 325, 634 P.2d 352, citing People v. Peters, supra, 21 Cal.3d 749, 756–757, 147 Cal.Rptr. 646, 581 P.2d 651 (dis. opn. of Mosk, J.))   However, in Peters, the Supreme Court held that a preliminary hearing magistrate did not sit as a “court” within the meaning of Penal Code section 1385 and could not dismiss under that section.   Both the Legislature and the Supreme Court have overturned the Peters holding.

Legislation which became effective January 1, 1981, fifteen days before the preliminary hearing, expressly empowered magistrates to rule on motions brought pursuant to section 1385.  (Stats.1980, ch. 938, § 7, p. 2968.)   This magistrate, however, was unaware of the statutory changes.   Although he opined the motion to dismiss had merit and Maynard would probably prevail on appeal, he stated he did not have jurisdiction to hear the motion under Peters.   Since Peters had been abrogated by statute, his ruling was clearly erroneous.

After the Legislature fired the fatal shot into Peters, the Supreme Court dug its grave and buried it.   In Landrum v. Superior Court, supra, 30 Cal.3d 1, 14, 177 Cal.Rptr. 325, 634 P.2d 352, Peters was expressly repudiated.   The court attacked Peters as poorly reasoned at the time it was rendered, conceded the error, and overruled it.   Magistrates have always had, and continue to have, the authority to entertain 1385 motions to dismiss.   (Jackson v. Superior Court (1982) 135 Cal.App.3d 767, 771, 185 Cal.Rptr. 766.)

II

 Was Defendant Denied a Substantial Right at the Preliminary Hearing? ¹

Jennings v. Superior Court (1967) 66 Cal.2d 867, 59 Cal.Rptr. 440, 428 P.2d 304 established the fundamental proposition that an accused cannot be denied substantial rights at his preliminary hearing.   If there is a deprivation of a substantial right, the ensuing commitment to stand trial in the superior court is illegal and the case should be dismissed.  (Pen.Code, § 995.)   The issue presented by this appeal is whether the defendant was denied a substantial right under Jennings and its progeny because the magistrate refused to rule on a motion to dismiss for prosecutorial harassment.

 A. First, the district attorney contends Maynard could not have a substantial right because he did not have any statutory right to bring a 1385 motion.   The Legislature has expressly authorized only the prosecution and the court or magistrate to initiate a dismissal motion “in furtherance of justice.”  (Pen.Code, § 1385.)   Since Maynard has not been accorded a statutory vehicle to bring the motion, the district attorney argues the magistrate's refusal to rule is insignificant.

The magistrate did not refuse to rule on the merits because it was the defendant who brought the motion but rather because he thought he lacked jurisdiction under compulsion of Peters.   However, since the statutory amendment had expressly conferred jurisdiction on him at the time of the preliminary hearing, he could have heard the motion to dismiss at the defendant's invitation.  (See People v. Benson (1976) 64 Cal.App.3d Supp. 10, 12–13, 134 Cal.Rptr. 766;  but note People v. Laiwa (1983) 34 Cal.3d 711, 722, fn. 6, 195 Cal.Rptr. 503, 669 P.2d 1278.)   Had he realized he had the power to rule, he appeared ready to accept Maynard's invitation.   The defendant should not be penalized for the magistrate's legal oversight.

The district attorney objects, not only to the lack of a statutory vehicle for bringing the motion, but also to the lack of a substantive statutory basis for a dismissal due to prosecutorial harassment.   He concedes deprivation of a statutory right to bring a motion at the preliminary hearing, such as a motion to suppress, is the denial of a substantial right.  (Cuevas v. Superior Court (1976) 58 Cal.App.3d 406, 130 Cal.Rptr. 238.)   However, he asserts an accused is entitled to bring only those motions expressly authorized by statute or those which relate to probable cause.   He further claims if a defendant is not limited to the rights and procedures delineated by the Legislature, the magistrate will be required to rule on all motions a defendant could possibly make at a preliminary hearing.   This argument must be rejected.

Maynard has alleged a constitutional infringement as fundamental and important as curtailment of a statutory right.   In People v. McCoy (1983) 147 Cal.App.3d 638, 195 Cal.Rptr. 285, the People argued the defendant was not entitled to a de novo hearing in the superior court on a speedy trial motion because, unlike motions to suppress, there was no statutory right to renew the motion.   The court held there was no need for an explicit statutory scheme.   Of more significance was the absence of a statutory prohibition.   Moreover, the court equated motions to dismiss on constitutional grounds with motions to suppress.   We are equally unconcerned with the absence of a statutory provision embodying a right which the defendant already has been constitutionally guaranteed.   Not all potential motions are of comparable constitutional dimension.

This conclusion is fortified by the sentiment expressed by the Supreme Court to the lack of statutory authority to raise the similar defense of discriminatory prosecution.  “Although no clear California statutory authority provides for such a pretrial motion to dismiss, we have no doubt in light of the constitutional nature of the issue as to the trial court's authority to entertain such a claim.”  (Murgia v. Municipal Court (1975) 15 Cal.3d 286, 293–294, fn. 4, 124 Cal.Rptr. 204, 540 P.2d 44.)

B. Second, the district attorney contends Jackson v. Superior Court, supra, 135 Cal.App.3d 767, 185 Cal.Rptr. 766 is dispositive.   Jackson was denied the opportunity to present testimony before the magistrate concerning prejudice caused by prearrest delay.   His motion to dismiss the information, claiming he was illegally committed (Pen.Code, § 995) was denied.   A superior court hearing on his nonstatutory motion to dismiss for prearrest delay was deferred while he sought a peremptory writ of prohibition.

In denying the writ, the court held:  “We conclude that testimony related to a nonstatutory motion to dismiss for prearrest delay is not integral to the preliminary examination.   A defendant prevented from litigating the issue before the magistrate is not ‘illegally committed.’   He may make his nonstatutory motion to dismiss in superior court.”  (Id., at p. 769, 185 Cal.Rptr. 766.)   The court was unwilling to extend Jennings to give a defendant “a right to present evidence which does not tend to establish an affirmative defense or overcome the prosecution's case, but which is directed toward establishing a legal basis for dismissing the prosecution.”  (Id., at p. 771, 185 Cal.Rptr. 766.)

The district attorney, applying Jackson, accurately finds prearrest delay indistinguishable from prosecutorial harassment.   Both are nonstatutory motions.   Neither relates to the defendant's factual innocence or guilt, but rather to a legal basis for dismissing the prosecution.   In the language of Jackson, the People contend “judicial efficiency and economy” dictate that the motion should be heard in superior court.²  We disagree and decline to follow the First District's reasoning in Jackson.

Maynard urges us to follow People v. Hertz (1980) 103 Cal.App.3d 770, 163 Cal.Rptr. 233, a case expressly criticized in Jackson.   In Hertz, the defendants' discovery motions in municipal court before the preliminary hearing seeking information to support their claim of discriminatory prosecution were denied.   The superior court granted a Penal Code section 995 motion to dismiss and the court of appeal affirmed.   Although the Hertz court reached the correct result, we are uncomfortable with its appreciation of substantial rights under Jennings.

The court in Hertz characterized discriminatory prosecution as an “affirmative defense,” citing Murgia v. Municipal Court, supra, 15 Cal.3d 286, 124 Cal.Rptr. 204, 540 P.2d 44.³  Although this characterization enabled the court to neatly fit the Jennings criteria requiring dismissal for denial of a substantial right, it misconstrued Murgia and muddled the concept of affirmative defenses.  Jackson was critical of this superficial approach to the analysis.   In Jackson, the court correctly observed what the Hertz court conveniently ignored;  discriminatory prosecution was not an “affirmative defense” in the true sense.  (Murgia v. Municipal Court, supra, 15 Cal.3d 286, 293, fn. 4, 124 Cal.Rptr. 204, 540 P.2d 44.)   Nonstatutory motions to dismiss, unlike more conventional affirmative defenses, are issues of law resolved by the court before trial.   The court in Jackson properly refused to analogize the affirmative defense of entrapment to either discriminatory prosecution or prearrest delay.

 The court in Hertz did not have to find the defendant had been denied the opportunity to pursue an affirmative defense to reach the same result.   Presentation of an affirmative defense is not the only substantial right accorded a criminal defendant at the preliminary hearing.  (Reid v. Superior Court (1983) 140 Cal.App.3d 624, 189 Cal.Rptr. 644;  Stevenson v. Superior Court (1979) 91 Cal.App.3d 925, 154 Cal.Rptr. 476;  Serrato v. Superior Court (1978) 76 Cal.App.3d 459, 142 Cal.Rptr. 882;  and DeWoody v. Superior Court (1970) 8 Cal.App.3d 52, 87 Cal.Rptr. 210.)  Jennings has not been, nor should it be so narrowly construed.   By simply labelling discriminatory enforcement as an affirmative defense, the court in Hertz sacrificed the opportunity to evaluate the importance of litigating alleged constitutional violations which taint the entire prosecution at a preliminary stage in the proceedings.

Maynard claims prosecutorial harassment and forum shopping.  “[T]he law will not permit harassment of a defendant through repeated prosecutions for the same offense by presenting the same facts over again in different proceedings.”   (People v. Podesto (1976) 62 Cal.App.3d 708, 721, 133 Cal.Rptr. 409;  see also People v. Uhlemann (1973) 9 Cal.3d 662, 669, 108 Cal.Rptr. 657, 511 P.2d 609.)   The claim of prosecutorial harassment, if meritorious, by definition means each prolongation of the prosecution exacerbates the harassment.   In effect the denial of the opportunity to litigate the claim at the earliest opportunity itself becomes harassment.   Consequently, continuation of the proceedings, including the preliminary hearing, constitutes the very constitutional defect sought to be exposed.

The Supreme Court in Jennings explained the expanded purpose of a preliminary hearing.  “The purpose of the preliminary hearing is to weed out groundless or unsupported charges of grave offenses, and to relieve the accused of the degradation and expense of a criminal trial.”  (Jennings v. Superior Court, supra, 66 Cal.2d 867, 880, 59 Cal.Rptr. 440, 428 P.2d 304 quoting Jaffe v. Stone (1941) 18 Cal.2d 146, 150, 114 P.2d 335.)   Indeed an accused should not be forced to suffer the degradation and expense of a preliminary hearing if the proceedings themselves are in violation of the constitution.

 Consequently, a defendant has a substantial right to have a magistrate rule on the merits of a motion to dismiss for prosecutorial harassment even though his claim does not technically constitute an “affirmative defense.”   Motions which attack the constitutional validity of the prosecution must be heard by the magistrate.   Maynard should not be forced to endure perpetuation of the harassment and the judicial system should not be burdened with conducting proceedings constitutionally infirm from the outset.   The defense of prosecutorial harassment must be heard, and if meritorious, the case dismissed at the earliest possible juncture.   Since Maynard was denied a substantial right at the preliminary hearing, the ensuing commitment was illegal and the motion to dismiss was properly granted.   Therefore, it is unnecessary to address the merits of the harassment motion.

The judgment of dismissal under Penal Code section 995 is affirmed.

FOOTNOTES

1.   The district attorney encourages us to ignore this argument on appeal because defense counsel invited the error by suggesting that the magistrate was “not required to grant the motion.”   This comment does not constitute invited error for the obvious reason that a magistrate may have the discretion to grant or deny a motion but nevertheless have the obligation to hear and rule on it.

2.   The district attorney points out Maynard withdrew his motion to dismiss for prosecutorial harassment before the superior court ruled on the motion.   A similar procedural strategy was sanctioned in Cuevas v. Superior Court, supra, 58 Cal.App.3d 406, 130 Cal.Rptr. 238, where the court noted, that if the suppression motion would have been renewed in the superior court, the error at the preliminary hearing would have been cured.  (People v. Mardian (1975) 47 Cal.App.3d 16, 37, 121 Cal.Rptr. 269.)

3.   The court concurred with the dismissal for two reasons:  (1) the defense of discriminatory enforcement had been properly raised by an offer of proof at the preliminary hearing and (2) the failure of the magistrate to create a reviewable record of the in camera proceeding during discovery hearings caused the binding over of the defendants for trial to be illegal.  (People v. Hertz, supra, 103 Cal.App.3d 770, 774, 163 Cal.Rptr. 233.)

WALLIN, Associate Justice.

TROTTER, P.J., and SONENSHINE, J., concur.