Lead Opinion
Opinion
Penal Code section 991
FACTUAL AND PROCEDURAL BACKGROUND
Defendant Douglas Lee McGowan was arrested at 1:30 a.m. on May 9, 2014. At the time, he was wrapped in a blanket and seated underneath the Santa Monica Pier. He was surrounded by various personal items, including two milk crates. The People filed a complaint charging him with (1) camping in a prohibited public place (Santa Monica Mun. Code, § 4.08.095, subd. (a)), (2) possession of a milk crate (Pen. Code, § 565), and (3) loitering under the Santa Monica Pier (Santa Monica Mun. Code, § 3.36.100). The defense filed
At oral argument, the parties informed the court that the charges against McGowan have been resolved, but that he remained in custody for some time pending resolution, as he was unable to post bond. Therefore, this matter has been rendered moot. However, “[wjhere questions of general public concern are involved, particularly in the area of the supervision of the administration of criminal justice, we may reject mootness as a bar to a decision on the merits.” (In re Walters (1975) 15 Cal.3d 738, 744 [126 Cal.Rptr. 239, 543 P.2d 607] (Walters); see In re Fluery (1967) 67 Cal.2d 600, 601 [63 Cal.Rptr. 298, 432 P.2d 986].)
DISCUSSION
A. Standard of Review and Rules of Statutory Construction
On appeal, questions of law and statutory interpretation are reviewed de novo. (People v. Kurtenbach (2012) 204 Cal.App.4th 1264, 1276 [139 Cal.Rptr.3d 637].) “ ‘Under settled canons of statutory construction, in construing a statute we ascertain the Legislature’s intent in order to effectuate the law’s purpose. [Citation.] We must look to the statute’s words and give them their usual and ordinary meaning. [Citation.] The statute’s plain meaning controls the court’s interpretation unless its words are ambiguous.’ [Citation.]” (People v. Robinson (2010) 47 Cal.4th 1104, 1138 [104 Cal.Rptr.3d 727, 224 P.3d 55].) “If, however, the language supports more than one reasonable construction, we may consider ‘a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part.’ [Citation.] Using these extrinsic aids, we ‘select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences.’ [Citation.]” (People v. Sinohui (2002) 28 Cal.4th 205, 211-212 [120 Cal.Rptr.2d 783, 47 P.3d 629].)
Section 991 states in part: “(a) If the defendant is in custody at the time he appears before the magistrate for arraignment and, if the public offense is a misdemeanor to which the defendant has pleaded not guilty, the magistrate, on motion of counsel for the defendant or the defendant, shall determine whether there is probable cause to believe that a public offense has been committed and that the defendant is guilty thereof. [¶] . . . [¶] (d) If, after examining these documents, the court determines that there exists probable cause to believe that the defendant has committed the offense charged in the complaint, it shall set the matter for trial. [¶] If the court determines that no such probable cause exists, it shall dismiss the complaint and discharge the defendant. [¶] (e) Within 15 days of the dismissal of a complaint pursuant to this section the prosecution may refile the complaint.”
1. Plain Meaning
The People argue that the statute unambiguously authorizes the court to dismiss “the complaint,” not individual counts, and not anything short of the entire complaint. We disagree. The singular term “the complaint” is not defined, and throughout the Penal Code, “the singular number includes the plural, and the plural the singular.” (§ 7.) The Supreme Court’s interpretation of other singular terms — such as “an action” or “the indictment or information” — to permit dismissal of individual counts in related Penal Code provisions is further evidence that section 991’s use of the singular term “the complaint” is not unambiguously dispositive.
Section 1385, subdivision (a) permits a trial court to dismiss “an action” in furtherance of justice. The statute is silent as to the dismissal of individual charges in an action. Nonetheless, in interpreting this provision, the Supreme Court has stated that “[t]he authority to dismiss the whole includes, of course, the power to dismiss or ‘strike out’ a part. [Citation.]” (People v. Burke (1956) 47 Cal.2d 45, 51 [301 P.2d 241], disapproved on other grounds in People v. Sidener (1962) 58 Cal.2d 645, 647 [25 Cal.Rptr. 697, 375 P.2d 641].) To this end, the high court has “consistently interpreted ‘action’ to mean the ‘individual charges and allegations in a criminal action’ [citations].” (In re Varnell (2003) 30 Cal.4th 1132, 1137 [135 Cal.Rptr.2d 619, 70 P.3d 1037]; see People v. Casper (2004) 33 Cal.4th 38, 45 [14 Cal.Rptr.3d 43, 90 P.3d 1203] [“Because ‘[t]he authority to dismiss the whole includes, of course, the power to dismiss or “strike out” a part’ [citation], the trial court’s power under section 1385 to dismiss the entire action necessarily includes the power to dismiss a part of the action . . . .”]; People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 508 [53 Cal.Rptr.2d 789, 917 P.2d 628] [“we have construed section 1385(a) as permitting a judge to dismiss not only an entire case, but also a
Section 1385 is not the only such example. While section 991 controls probable cause determinations in misdemeanor cases, section 995 governs probable cause determinations in felony cases. Like section 991, section 995 employs the singular form and provides that “the indictment or information shall be set aside” if the trial court concludes a defendant was indicted or committed without probable cause. (§ 995, subd. (a).) It, too, has been interpreted to permit the setting aside of a portion of the indictment or information. (See People v. Superior Court (Mendella) (1983) 33 Cal.3d 754, 761, fn. 6 [191 Cal.Rptr. 1, 661 P.2d 1081] (Mendella) [“It is, of course, well settled that a defendant’s challenge under section 995 need not be directed to the entire information but may instead attack only portions thereof.”], superseded by statute on other grounds as stated in In re Jovan B. (1993) 6 Cal.4th 801, 814, fn. 8 [25 Cal.Rptr.2d 428, 863 P.2d 673]; People v. Fraijo (1977) 78 Cal.App.3d 977, 981 [144 Cal.Rptr. 424] [noting that § 995 has been interpreted as permitting the dismissal of a count or counts that are part of a broader information, even though the statute does not expressly authorize setting aside less than the entire information].)
That section 991 deals with in-custody defendants, while sections 995 and 1385 deal with both in-custody and out-of-custody defendants, does not render section 991’s words, “the complaint,” unambiguous. In fact, the in-custody versus out-of-custody distinction is not relevant to an ambiguity determination. And if the People were correct that the term “the complaint” necessarily and unambiguously means that only an entire complaint may be dismissed, then the long line of cases interpreting sections 995 and 1385 would be wrong. We decline to reach that conclusion.
Furthermore, “ ‘it is well settled that the statutes and codes blend into each other, and are to be regarded as constituting but a single statute .... Accordingly, statutes which are in pari materia should be read together and harmonized if possible.’ ” (People v. Squier (1993) 15 Cal.App.4th 235, 240 [18 Cal.Rptr.2d 536], citations omitted.) As evidenced in the legislative history discussed below, the Legislature intended for sections 991 and 995 to serve analogous purposes (to weed out unsupported charges prior to trial) in the misdemeanor and felony contexts. We therefore construe the sections harmoniously.
2. Legislative History
Where the statutory language is ambiguous, we look to extrinsic aids such as the legislative history and public policy to inform our interpretation of the
Undoubtedly, section 991 was enacted as a partial response to Walters, which followed the United States Supreme Court decision in Gerstein v. Pugh (1975) 420 U.S. 103 [43 L.Ed.2d 54, 95 S.Ct. 854] (Gerstein). Gerstein held that the Fourth Amendment to the United States Constitution requires a “timely judicial determination of probable cause as a prerequisite to detention.” (Gerstein, at p. 126.) This was because pretrial confinement was a significant restraint on liberty and could not be imposed without a judicial determination of probable cause. (Id. at p. 114.) The court noted that even pretrial release could be accompanied by burdensome conditions that amounted to a significant restraint on liberty. (Ibid.)
Following Gerstein, the Supreme Court held in Walters that “a judicial determination of probable cause to hold an arrestee for trial on a misdemeanor charge must be made if the arrestee requests that determination, unless pending trial he is released on his own recognizance.” (Walters, supra, 15 Cal.3d at pp. 742-743, fn. omitted.) Based on an analysis of Walters and Gerstein, the appellate division concluded that section 991’s sole purpose was to implement Gerstein'& constitutional requirement that a magistrate promptly determine if there is probable cause to believe the defendant committed “a crime” before forcing him or her to await trial while in custody. According to the appellate division, this goal requires the trial court to evaluate the complaint as a whole to determine whether there is probable cause to believe the defendant committed any of the charged crimes.
However, it is also clear the Legislature intended to, and did, go beyond merely parroting and codifying Walters. Unlike Walters, section 991 (a) requires dismissal of the complaint along with discharge of the defendant if there is no probable cause to believe the defendant committed the misdemeanor, (b) requires the court to set the matter for trial if it determines probable cause exists, (c) provides the prosecution may refile the complaint within 15 days of dismissal, (d) bars further prosecution upon a second dismissal, and (e) requires the court to consider police reports or the record of citizen complaints, but not live witnesses or cross-examination, in determining probable cause. (§ 991, subd. (a).) None of these provisions of section 991 are contemplated by Walters.
The legislative history confirms that section 991 was intended to go beyond Walters. The provision was enacted October 1, 1980, “to create a means for eliminating groundless misdemeanor complaints before a case goes
In fact, the legislative history is replete with evidence that section 991 was intended not only to codify Walters, but also to weed out groundless charges. The Assembly Committee on Criminal Justice’s bill analysis describes the bill’s background and purpose as follows: “Persons accused of felony offenses have a right to a hearing before being held to answer on the charges. The hearing is to determine whether there is reasonable cause to believe a felony has been committed by the defendant. The purpose of the preliminary hearing is to weed out groundless or unsupported charges (Witkin, Ca. Crim. Pro., p. 128). Persons accused of misdemeanors and persons who waive their right to a preliminary hearing do not have a right of review of the charges against them prior to trial. [¶] . . . [¶] 1. Currently there is no procedure to weed out groundless misdemeanor complaints prior to trial. Proponents argue that this bill would permit the expeditious dismissal of unsupported or frivolous charges. Proponents indicate that certain indigents accused of misdemeanors can be in custody for 30 days before groundless charges can be weeded out.” (Assem. Com. on Criminal Justice, Analysis of Assem. Bill No. 2931 (1979-1980 Reg. Sess.) Apr. 21, 1980, pp. 1-2, italics added; see Assem. Com. on Criminal Justice, Analysis of Assem. Bill No. 2931 (1979-1980 Reg. Sess.) Apr. 28, 1980, pp. 1-2 [same]; Sen. Judiciary Com., Analysis of Assem. Bill No. 2931 (1979-1980 Reg. Sess.) July 9, 1980, p. 2 [“Persons accused of felony offenses have a right to a hearing before being held to answer on the charges. The hearing is to determine whether there is reasonable cause to believe a felony has been committed by the defendant. The purpose of the preliminary hearing is to weed out groundless or unsupported charges (Witkin, Ca. Crim. Pro., p. 128). Persons accused of misdemeanors and persons who waive their right to a preliminary hearing do not have a right of review of the charges against them prior to trial. [¶] Currently there is no procedure to weed out groundless misdemeanor complaints prior to trial. Proponents argue that this bill would permit the expeditious dismissal of unsupported or frivolous charges. Proponents indicate that certain indigents accused of misdemeanors can be in custody for 30 days before groundless charges can be weeded out.”]; Sen. Democratic Caucus, Analysis of Assem. Bill No. 2931 (1979-1980 Reg. Sess.) as amended July 9, 1980, p. 1 [“Proponents argue that this bill establishes a procedure for the expeditious dismissal of unsupported or frivolous charges. They also argue that, under the present system, people accused of misdemeanors are in custody for as long as 30 days before groundless charges can
These legislative analyses evince the Legislature’s desire to create a procedural mechanism to “weed out groundless misdemeanor complaints prior to trial” and to facilitate the “expeditious dismissal of unsupported or frivolous charges.” The legislative history also indicates the Legislature intended that section 991 would serve a function similar to that of felony preliminary hearings, which “is to weed out groundless or unsupported charges.” (See People v. Plengsangtip (2007) 148 Cal.App.4th 825, 835 [56 Cal.Rptr.3d 165] [purpose of a preliminary hearing is to “ ‘assure that a person is not detained for a crime that was never committed,’ ” and “ ‘ “to weed out groundless or unsupported charges” ’ ”].)
Thus, throughout the legislative history, the probable cause hearing is referred to as “preliminary hearings for misdemeanors.” (See Sen. Democratic Caucus, Analysis of Assem. Bill No. 2931 (1979-1980 Reg. Sess.) as amended July 9, 1980, p. 1.) The Assembly Committee on Criminal Justice’s analysis of the bill is captioned, “SUBJECT; Preliminary Hearing for Misdemeanor Offenses.” (Assem. Com. on Criminal Justice, Analysis of Assem. Bill No. 2931 (1979-1980 Reg. Sess.) Apr. 21, 1980, p. 1; see Assem. Com. on Criminal Justice, Analysis of Assem. Bill No. 2931 (1979-1980 Reg. Sess.) Apr. 28, 1980, p. 1 [same].) Likewise, the Senate Committee on Judiciary’s analysis of the bill is titled, “MISDEMEANORS [¶]— PRELIMINARY HEARINGS — .” (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 2931 (1979-1980 Reg. Sess.) as amended May 7, 1980, p. 1.)
In fact, proponents and opponents of the bill alike recognized that the provision would establish a right to “preliminary hearings” in misdemeanor cases. (See Los Angeles County Municipal Court Judges’ Assn., letter to Assemblyman Bill McVittie, Apr. 11, 1980 [“This bill would establish a preliminary hearing for misdemeanors.”]; Cal. District Attorneys Assn., letter to Assemblyman Elihu M. Harris, July 17, 1980 [noting that the proposed bill “provide[s] an in-custody defendant with [the] right to a preliminary hearing where the charged offense is a misdemeanor”]; Los Angeles County Municipal Court Judges’ Assn., letter to Sen. Bob Wilson, June 13, 1980 [“This bill would establish a preliminary hearing for misdemeanors.”].)
This terminology makes clear that the Legislature contemplated that section 991 probable cause hearings would serve a purpose similar to that of preliminary hearings in felony cases, i.e., “ ‘assure that a person is not detained for a crime that was never committed’ ” and “ ‘ “to weed out
Contrary to the People’s position, there is no evidence in the legislative history that the Legislature ultimately rejected the proponents’ position that section 991 would allow trial courts to “weed out” groundless charges. The most recent evidence of the Legislature’s dual intent is found in the analyses by the Senate Democratic Caucus and the Senate Republican Caucus. These analyses are dated within two days before the Senate voted on the bill. The Senate Democratic Caucus’s analysis states: “Proponents argue that this bill establishes a procedure for the expeditious dismissal of unsupported or frivolous charges.” (Sen. Democratic Caucus, Analysis of Assem. Bill No. 2931 (1979-1980 Reg. Sess.) p. 1.) Likewise, the “comments” section of the Senate Republican Caucus’s analysis states: “Currently there is no procedure to weed out groundless misdemeanor complaints prior to trial. Proponents argue that this bill would permit the expeditious dismissal of unsupported or frivolous charges. Proponents indicate that certain indigents accused of misdemeanors can be in custody for 30 days before groundless charges can be weeded out.” (Sen. Republican Caucus, analysis of Assem. Bill No. 2931 (1979-1980 Reg. Sess.) p. 2.)
This legislative history belies the appellate division’s holding that “[t]he statute is not a mechanism to extricate certain unsupportable charges from an otherwise legitimate complaint” but rather “simply an implementation of Gerstein’s constitutional requirement that a magistrate promptly determine there is probable cause to believe the defendant committed ‘a crime’ before forcing him or her to await trial while in custody.” (People v. McGowan (2015) 235 Cal.App.4th Supp. 1, 6 [185 Cal.Rptr.3d 532].) We disagree with the notion that the legislative documents contain “inaccuracies” that somehow suggest the Legislature did not intend what it said.
Taken to its logical conclusion, the appellate division’s all-or-nothing decision would result in a situation where a trial court presented with a multi-count complaint determines there is no probable cause for all but one of the charges. Under the appellate division’s decision, the defendant would be forced to stand trial on all of the charges, including the ones for which the court has already determined there is no probable cause. Nor is it accurate that the trial court may satisfy its section 991 obligations by examining only one charge in a multi-charge complaint. Section 991, subdivision (d) states in part: “If, after examining these documents, the court determines that there exists probable cause to believe that the defendant has committed the offense charged in the complaint, it shall set the matter for trial. [¶] If the court determines that no such probable cause exists, it shall dismiss the complaint and discharge the defendant.” This provision requires the trial court to determine whether probable cause exists for each offense in the complaint. Under the People’s position, the trial court may determine that no probable
We agree with the defense that the section must be interpreted to permit the trial courts to dismiss not only an entire complaint, but also individual charges within the complaint, if it finds the charges are not supported by probable cause.
3. Public Policy
Many of the public policy objectives that underpin section 995 also support a reading of section 991 that permits trial courts to dismiss individual charges from a complaint. The Supreme Court has stated that preliminary hearings and section 995 motions “operate as a judicial check on the exercise of prosecutorial discretion” and help ensure that the defendant is not charged excessively. (Mendella, supra, 33 Cal.3d at p. 759.) Not only do excessive and unfounded charges confer a “tactical advantage . . . upon the prosecutor in respect to plea bargaining,” they also subject defendants to prejudicial introduction of “ ‘evidence concerning allegations that should have been “weeded out” ’ ” in pretrial proceedings. (Id. at pp. 760-761.)
These policy considerations apply equally in the misdemeanor context. We do not suggest that prosecutors regularly and inappropriately overcharge misdemeanor defendants. “ ‘A prosecutor abides by elementary standards of fair play and decency by refusing to seek indictments until he or she is completely satisfied the defendant should be prosecuted and the office of the prosecutor will be able to promptly establish guilt beyond a reasonable doubt.’ [Citations.]” (People v. Nelson (2008) 43 Cal.4th 1242, 1256 [78 Cal.Rptr.3d 69, 185 P.3d 49].)
Similarly, the dismissal of unfounded charges ensures that bail is appropriately set. Bail is fixed according to the charges alleged, so the dismissal of some charges may justify reduced bail or release on a defendant’s own recognizance. For example, a single complaint may charge a defendant with misdemeanors and an infraction. If a magistrate finds no probable cause for the misdemeanors, the only charge remaining would be an infraction, for which no jail time may be imposed. (§ 19.6 [“An infraction is not punishable by imprisonment.”].) In that case, pretrial confinement is assuredly not justified in the vast majority of cases. Yet, the defendant in this scenario would remain in jail pending trial if the People were correct that all charges against a defendant must stand unless there is no probable cause to support any of the counts.
As with felony charges, dismissal of unfounded misdemeanor charges also protects custodial defendants from the introduction of prejudicial or time-consuming evidence at trial, when that evidence is relevant only to charges that should have been “weeded out” in pretrial proceedings. (See Mendella, supra, 33 Cal.3d at pp. 760-761.) It also promotes judicial economy, allowing courts to avoid trials on unfounded charges.
In the event of a dismissal under section 991, the prosecution is permitted to refile the complaint within 15 days of dismissal. (§ 991, subd. (e).) Nonetheless, the People argue that they could be foreclosed from refiling misdemeanor charges dismissed on a count-by-count basis. They point out that, following dismissal of some of the charges, a defendant may plead guilty to the remaining charges even without the prosecutor’s consent. (People v. Superior Court (Jurado) (1992) 4 Cal.App.4th 1217, 1230 [6
First, we note that the People have cited no cases where Kellett has been applied to bar the refiling of a charge dismissed pursuant to section 991 or 995, and we have found no such cases. To the contrary, in People v. Carter (2005) 36 Cal.4th 1215 [32 Cal.Rptr.3d 838, 117 P.3d 544], the Supreme Court held that section 654 does not bar the defendant’s trial on charges that were dismissed from an earlier complaint, even though the defendant was subsequently tried and convicted on the remaining charges in that complaint. (Carter, at pp. 1238-1240; see Jurado, supra, 4 Cal.App.4th at pp. 1230-1231 [defendant who pled guilty to murder without prosecutor’s consent after § 995 dismissal of lying-in-wait special circumstance allegation could later be retried on the special circumstance]; 3 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) §§ 261, 262, pp. 416-417 [discussing the multiple prosecution rule, and distinguishing retrials on individual counts dismissed from a complaint, even after the defendant is convicted of the remaining charges].)
Section 1004 presents a situation analogous to that discussed here. That section permits a defendant to demur “to the accusatory pleading” on the grounds that the facts stated do not constitute “a public offense” or that the court lacks jurisdiction over “the offense charged.” (§ 1004, subds. 1 & 4.) If the demurrer is sustained and it appears the defects may be cured, the court may permit the filing of an amended complaint within 10 days. (§ 1007.) We can find no authority stating that Kellett bars the filing of the amended complaint if the defendant pleads to the remaining charges in the interim.
Nor do we believe that Kellett should apply in the scenario posed by the People. The bar against successive prosecutions, as set forth in Kellett, exists to prevent prosecutorial harassment of defendants. (See Kellett, supra, 63 Cal.2d at pp. 825-826 [“It would constitute wholly unreasonable harassment ... to permit trials seriatim until the prosecutor is satisfied with the punishment imposed.”].) It does not apply when a defendant deliberately
Moreover, even if the People were correct that Kellett could be invoked to bar the refiling of a charge dismissed pursuant to section 991, we believe the scenario is one that will occur in limited circumstances only and is unlikely to result in significant prejudice. The Kellett rule “is designed to cover prosecutions for offenses arising out of the same act.” (People v. Douglas (1966) 246 Cal.App.2d 594, 599 [54 Cal.Rptr. 777].) In Kellett, supra, 63 Cal.2d at page 824, the Supreme Court held that the charges of exhibiting a firearm in a threatening manner and possession of a concealable weapon by a felon could not be separately prosecuted where they arose from the single act of brandishing a pistol. By contrast, the rule has been held inapplicable in cases where the offenses arise from separate acts or conduct, even when they occurred in the same location at the same time. (See, e.g., People v. Martin (1980) 111 Cal.App.3d 973, 978 [169 Cal.Rptr. 52] [separate prosecutions for burglary and possession of a sawed-off shotgun permitted where the defendant stole the shotgun during the burglary]; People v. Hurtado (1977) 67 Cal.App.3d 633, 637 [136 Cal.Rptr. 774] [defendant may be separately prosecuted for drunk driving and possession of heroin where he was found trying to hide a package of heroin between his legs when stopped for drunk driving]; People v. Ward (1973) 30 Cal.App.3d 130, 136 [105 Cal.Rptr. 67] [defendant who pled guilty to oral copulation was subject to second prosecution for rape, kidnapping, and assault; “[t]he mere fact that they occurred in defendant’s vehicle during the same night does not connect them as parts of a continuous course of conduct”].)
Therefore, even if Kellett could be read as barring prosecution on the dismissed charges in the event a defendant pleads guilty following a count-by-count dismissal, the bar would not apply unless the charges arise from the same act or conduct. If they arise from the same act or conduct, then section
DISPOSITION
The order of dismissal is affirmed.
Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
All further statutory references are to the Penal Code, unless otherwise specified.
In a May 14, 1980 memo to Assemblyman Elihu Harris from Jim Tucker of the American Civil Liberties Union (ACLU), the ACLU offers its opinion that Assembly Bill No. 2931 (1979-1980 Reg. Sess.) merely codifies Walters. However, even this memo notes, in language reminiscent of preliminary hearings, that “[t]he bill. . . [permits] the court to screen out those cases for which there is clearly no evidence to support the charge.” (Jim Tucker, ACLU, mem. to Assemblyman Elihu Harris, May 14, 1980.)
The Legislative Counsel’s Digest for Assembly Bill No. 2931 (1979-1980 Reg. Sess.) is confusing and provides: “Existing law authorizes the magistrate in misdemeanor cases to ascertain the gravity of the offense committed, in case the defendant may be held to answer for a higher offense. Existing law does not specifically provide for a determination in misdemeanor cases, prior to the filing of an information, of whether there is probable cause to believe that a public offense has been committed and that the defendant is guilty thereof.” (Legis. Counsel’s Dig., Assem. Bill No. 2931 (1979-1980 Reg. Sess.) 4 Stats. 1980, Summary Dig., p. 470.) The first sentence applies to felonies, not misdemeanors. The second sentence juxtaposes the first sentence and is only necessary if the first sentence describes felony procedures. It is highly unlikely, from a reading of the complete legislative history, that every member of the Legislature voting for passage of Assembly Bill No. 2931 (1979-1980 Reg. Sess.), and every lawyer and judge who submitted comments, did so under the mistaken belief that misdemeanor and felony procedures were somehow conflated or merged because of the Legislative Counsel Digest’s comments. Indeed, even the People acknowledge that the errors in the Legislative Counsel’s Digest are irrelevant in terms of the issue presented.
The People argue the precise opposite: that it would be absurd to “discharge the defendant” (§991, subd. (d)) simply because two of three counts are dismissed. Wherever possible, we harmonize statutory provisions relating to the same subject, in light of the Legislature’s overall purpose. (Industrial Risk Insurers v. Rust Engineering Co. (1991) 232 Cal.App.3d 1038, 1042 [283 Cal.Rptr. 873].) Given that one of the purposes behind legislative enactment of section 991 was to “weed out groundless misdemeanor complaints prior to trial” and to “permit the expeditious dismissal of unsupported or frivolous charges” (Sen. Judiciary Com., Analysis of Assem. Bill No. 2931 (1979-1980 Reg. Sess.) July 9, 1980, p. 2), we believe subdivision (d) of section 991 must be interpreted to mean that a defendant is discharged only “[i]f the court determines that no such probable cause exists [for each offense].”
Dissenting Opinion
Dissenting.
I. INTRODUCTION
I respectfully dissent from the order upholding the dismissal of counts 2 and 3 of the misdemeanor complaint. In my view, the plain language of Penal Code
II. STANDARDS OF REVIEW
Because this case involves an issue of a statutory interpretation applied to undisputed facts, we exercise independent review. (Burden v. Snowden (1992) 2 Cal.4th 556, 562 [7 Cal.Rptr.2d 531, 828 P2d 672]; Kennedy v. Kennedy (2015) 235 Cal.App.4th 1474, 1480 [186 Cal.Rptr.3d. 198].) Our Supreme Court has explained: “When construing a statute, we look first to its words, ‘ “because they generally provide the most reliable indicator of legislative intent.” [Citation.] We give the words their usual and ordinary meaning [citation], while construing them in light of the statute as a whole and the statute’s purpose [citation].’ (Pineda v. Williams-Sonoma Stores, Inc. (2011) 51 Cal.4th 524, 529-530 [120 Cal.Rptr.3d 531, 246 P.3d 612].)” (In re Ethan C. (2012) 54 Cal.4th 610, 627 [143 Cal.Rptr.3d 565, 279 P3d 1052]; see Hsu v. Abbara (1995) 9 Cal.4th 863, 871 [39 Cal.Rptr.2d 824, 891 P.2d 804].) According to our Supreme Court: “ ‘If there is no ambiguity in the language, we presume the Legislature meant what it said and the plain meaning of the statute governs.’ [Citation.] ‘Only when the statute’s language is ambiguous or susceptible of more than one reasonable interpretation, may the court turn to extrinsic aids to assist in interpretation.’ [Citation.]” (Pineda v. Williams-Sonoma Stores, Inc., supra, 51 Cal.4th at p. 530; see In re Ethan C., supra, 54 Cal.4th at p. 627.) As I will explain, this is the controlling rule of interpretative law.
In any event, if (but only if) the statutory language is ambiguous, then it is appropriate to review extraneous historical materials which assist in determining what the Legislature intended. Our Supreme Court has explained the nature of such evidence that may be reviewed: “If the statutory language is susceptible of more than one reasonable interpretation, we must look to additional canons of statutory construction to determine the Legislature’s purpose. (Olson v. Automobile Club of Southern California [(2008)] 42 Cal.4th [1142,] 1147 [74 Cal.Rptr.3d 81, 179 P.3d 882].) ‘Both the legislative history of the statute and the wider historical circumstances of its enactment may be considered in ascertaining the legislative intent.’ (Dyna-Med, Inc. v. Fair Employment & Housing Com. [(1987)] 43 Cal.3d [1379,] 1387 [241 Cal.Rptr. 67, 743 P.2d 1323].)” (McCarther v. Pacific Telesis Group (2010) 48 Cal.4th 104, 110 [105 Cal.Rptr.3d 404, 225 P.3d 538].) In my view, the weight of the historical materials is that individual counts, as distinguished from the complaint’s entirety, may not be dismissed. (§ 991, subd. (d) [“dismiss the complaint.”].)
In my view, the plain language of section 991 is controlling without reference to any legislative intent materials. Nothing in the language of section 991 allows for the dismissal of individual counts. I agree with the following analysis in the appellate division opinion: “Section 991 expressly refers to the dismissal of the complaint: ‘If the court determines that no such probable cause exists, it shall dismiss the complaint and discharge the defendant.’ (§ 991, subd. (d), italics added.) The statute further provides for the refiling of a complaint after a motion to dismiss is granted under section 991: ‘Within 15 days of the dismissal of a complaint pursuant to this section the prosecution may refile the complaint.’ (§ 991, subd. (e), italics added.) There is no language authorizing either the dismissal of charges independent of the complaint, or the refiling of a charge that was previously dismissed from a complaint that otherwise survived a section 991 motion. The statute consistently references ‘the complaint,’ not independent charges within the complaint.” This analysis is controlling and dispenses with the need to review legislative intent materials. (Pineda v. Williams-Sonoma Stores, Inc., supra, 51 Cal.4th at p. 530; see In re Ethan C., supra, 54 Cal.4th at p. 627.)
IV. STATUTORY CONSTRUCTION ANALYSIS
A. Introduction
In my view, the weight of the evidence demonstrates that the Legislature did not intend to provide for the dismissal of individual counts without dismissing the entire complaint. Further, unlike the parties, I believe some of the language in one Senate caucus report and in every version of the Legislative Counsel’s Digest is just plain wrong. Those errors are irrelevant though in terms of the issue before us. When the totality of the evidence on the subject is assessed, I conclude the Legislature never intended to permit dismissal of individual counts without dismissal of the entire complaint. No committee report, analysis or letter by an interested party directly or inferentially states the language in section 991, subdivision (d) (“dismiss the complaint”) permits dismissal of individual counts.
B. Incorrect Analysis
The legislative intent materials contain an inaccuracy. Every version of the Legislative Counsel’s Digest for Assembly Bill No. 2931 (1979-1980 Reg. Sess.) (Assembly Bill No. 2931) contains the following incorrect analysis: “Existing law authorizes the magistrate in misdemeanor cases to ascertain the gravity of the offense committed, in case the defendant may be held to answer for a higher offense. Existing law does not specifically provide for a
C. Evidence Consistent with the Analysis That Section 991 Provides a Trial Court with the Authority to Dismiss a Complaint but Not Individual Counts
1. The decisional authority concerning the custody of misdemeanor defendants preceding introduction of Assembly Bill No. 2931
Two decisions preceded and motivated the introduction of Assembly Bill No. 2931. The first decision was Gerstein, supra, 420 U.S. at pages 106-125, a federal civil rights action which discusses the extent of Fourth Amendment rights of detained arrestees. Gerstein held, “[W]e hold that the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest.” (Gerstein, at p. 114; see Michigan v. Doran (1978) 439 U.S. 282, 285, fn. 3 [58 L.Ed.2d 521, 99 S.Ct. 530].) Gerstein further held: “[A state] must provide a fair and reliable determination of probable cause as a condition for any significant pretrial restraint of liberty, and this determination must be made by a judicial officer either before or promptly after arrest.” (Gerstein, at p. 125, fn. omitted; see Baker v. McCollan (1979) 443 U.S. 137, 142-143 [61 L.Ed.2d 433, 99 S.Ct. 2689].) Gerstein allowed the states flexibility and the option of experimenting in devising post-arrest probable cause determination hearing procedures. (Gerstein, at p. 123; see County of Riverside v. McLaughlin (1991) 500 U.S. 44, 54 [114 L.Ed.2d 49, 111 S.Ct. 1661].)
2. Legislative history documents
When originally introduced, Assem. Bill No. 2931 applied to misdemeanor defendants even if they were out of custody. (Assem. Bill No. 2931, as introduced Mar. 6, 1980.) On April 10, 1980, prior to the scheduled Assembly Committee on Criminal Justice hearing, Steve White of the California District Attorneys Association wrote to Assemblymember Elihu Harris. (Assemblymember Harris was the author of Assem. Bill No. 2931.) Mr. White explained that “current decisional law,” in obvious reference to Gerstein and Walters, required a probable cause determination only in the case of detained defendants. (Steve White, Cal. District Attorneys Assn., letter to Assemblymember Harris concerning Assem. Bill No. 2931, as introduced, Apr. 10, 1980, p. 1.) After the initial hearing before the criminal justice committee, Assembly Bill No. 2931 was amended to apply only to detained misdemeanor defendants. In his April 10, 1980 letter, Mr. White never expressed any belief
Two reports prepared for an April 28*, 1980 hearing before the Assembly Committee on Criminal Justice describe how Assembly Bill No. 2931 established a procedure for determining probable cause in misdemeanor cases. At the conclusion of the description of the bill, both committee reports state, utilizing the same language: “4. If the court determines that there is probable cause to believe that the defendant committed the misdemeanor it shall set the matter for trial. [¶] 5. If the court determines that there is no probable cause it shall dismiss the complaint.” (Assem. Com. on Criminal Justice (Assem. Bill No. 2931 as introduced) Apr. 28, 1980, p. 1; Assem. Com. on Criminal Justice (Assem. Bill No. 2931 as introduced) Apr. 21, 1980, p. 1, italics added.)
In a similar vein, the Assembly third reading report states: “This bill establishes a procedure for determining probable cause in misdemeanor cases where the defendant is in custody at the time he or she appears before the magistrate for arraignment and upon motion of counsel. Specifically, the bill: [¶] 1) Requires the court to determine the probable cause issue immediately, or for good cause continue the hearing for up to three days; [¶] 2) Requires the court, in determining probable cause, to consider any warrant or supportive affidavits, the sworn complaint or other documents of similar reliability; and [¶] 3) Requires the court to set the matter for trial if probable cause exits, or else dismiss the complaint.” (Assem. Off. of Research, 3d reading rep. (Assem. Bill No. 2931, as amended May 7, 1980) May 12, 1980, p. 1, italics added.)
In preparation for final Assembly action, James Tucker, the lobbyist for the American Civil Liberties Union, California Legislative Office, prepared a floor statement for use by Assemblymember Harris. (James Tucker mem. to Assemblymember Elihu Harris regarding Assem. Bill No. 2931, May 14, 1980 (hereafter Tucker memorandum).) To begin with, Mr. Tucker explained that Assembly Bill No. 2931 was a codification of the Walters decision: “[Assembly Bill No. 2931] is merely a codification of a 1975 Supreme Court decision by Mr. Chief Justice Wright (In re Walters) which held that where a person is arrested on a misdemeanor charge and he is in custody at the time of his arraignment he is entitled to have the judge review the facts of the complaint to determine if there is probable cause to believe an offense was committed by the defendant. If the court finds that there is no probable cause then the judge must release the defendant pending a trial or other hearing on the case.” (Tucker mem., p. 1.) Mr. Tucker explained that Assembly Bill
At another point, the Tucker memorandum states: “The other aspect of the bill ... is that it permits the court to dismiss the case if it determines that there is no probable cause, but it permits the prosecutor to refile the case a second time if he disagrees with the action of the court or he is able to come up with additional evidence. Thus, the bill fully protects the ability of the prosecutor to prosecute legitimate cases while still permitting the court to screen out those cases for which there is clearly no evidence to support the charge. This will help the Municipal Courts eliminate those cases from its calendar which should not be in the court system.” (Tucker mem., p. 2.) Nothing in Tucker’s memorandum describing Assembly Bill No. 2931 and the Walters decision prepared for Assemblymember Harris’s use on the Assembly floor refers to the dismissal of individual counts.
Once it passed the lower house, Assembly Bill No. 2931 was referred to the Senate Committee on Judiciary on May 21, 1980. (Assem. Final History, Assem. Bill No. 2931, p. 1684.) The Senate Judiciary Committee hearing on Assembly Bill No. 2931 was completed on July 8, 1980. (Ibid.) The report prepared for the Senate Judiciary Committee hearing concluded on July 8, 1980, specifies as the key issue, “SHOULD THERE BE A PROCEDURE FOR DETERMINING PROBABLE CAUSE IN MISDEMEANOR CASES AS PRESCRIBED BY THE U.S. AND CALIFORNIA SUPREME COURTS?” (Sen. Com. on Judiciary, supra, at p. 1.) The Senate Judiciary Committee report identifies as the purpose of Assembly Bill No. 2931: “Under existing law a person accused of a felony has a right to a hearing in order to determine whether probable cause exists to believe that she or he has committed the offense. However, existing law contains no provision for such a hearing when a person has been charged with a misdemeanor, though a judicial determination of probable cause when the defendant in custody was required by the U.S. Supreme Court in Gerstein v. Pugh (1975) and the California Supreme Court in In re Walters (1975). [¶] This bill would establish a procedure for determining probable cause in misdemeanor cases where the defendant is in custody and would provide that two dismissals for lack of probable cause is a bar to further prosecution. [¶] The purpose of this bill is to create a means for eliminating groundless misdemeanor complaints before a case goes to trial and to codify In re Walters.” (Sen. Com. on Judiciary, supra, at pp. 1-2, italics added.)
The Senate Judiciary Committee report then synthesizes the holding of Walters: “In the case of In re Walters[, supra, ]15 Cal.3d 738, the California
The Senate judiciary committee report then expressly identifies the relationship between the Walters opinion and Assembly Bill No. 2931: “The structure of the pretrial probable cause determination set forth in In re Walters is similar to that in [Assembly Bill No.] 2931 [¶] (a) Arraignment is the most appropriate stage at which to make a judicial determination of probable cause that the defendant is being properly detained. However, the parties may stipulate to a later determination or the court may, for good cause, continue the determination on defendant’s motion. [¶] (b) Use of complaint: When a defendant is arrested pursuant to a warrant, probable cause may be based solely upon examination of the complaint, arrest warrant, and supporting affidavit. If the defendant is arrested without a warrant, the judge may make her or his determination upon a sworn complaint that incorporates by reference other factual materials supporting probable cause. Probable cause may also be proved by a sworn complaint that, without reference to other materials, fully explicates the factual basis of the crime charged. [¶] (c) Testimonial evidence: In re Walters would also permit the prosecution to utilize testimonial evidence on the issue of probable cause in the presence of the defendant and her or his attorney if relevant documentation did not support continued detention.” (Sen. Committee on Judiciary, supra, at pp. 2-3.)
The Senate Judiciary Committee report describes the probable cause hearing as follows: “2. Preliminary hearing procedure [¶] Under this bill the probable cause hearing would take place as follows: [¶] (a) If a defendant was in custody and had pleaded not guilty, the magistrate, on motion of either counsel or the defendant, would at the time of arraignment determine whether probable cause existed to believe that the defendant was guilty of a public offense. [¶] (b) The court would determine probable cause immediately, or, upon a good cause showing, could grant a continuance, not to exceed three days. [¶] (c) In determining probable cause, the court could consider any arrest warrant and supporting affidavits, the sworn complaint, and other similarly reliable documents. [¶] (d) If the court determined that probable cause existed, the case would be set for trial. [¶] (e) If the court determined that probable cause did not exist, the complaint would be dismissed and the defendant discharged.” (Sen. Committee on Judiciary, supra, at pp. 3-4, italics added.)
After the Senate amendments were adopted, Assembly Bill No. 2931 returned to the lower house for further action. While the legislation was awaiting concurrence in the Senate amendments, Mr. White, on behalf of the district attorneys association, weighed in again with concerns about Assembly Bill No. 2931. Mr. White was concerned because the legislation went beyond the Walters decision in one respect. Assembly Bill No. 2931 required dismissal of the complaint in addition to the defendant’s release. On July 17, 1980, Mr. White wrote: “We believe your proposal is an attempt to codify a 1975 California Supreme Court decision, In re Walters, 15 Cal.3d 738, in which it was held that a judicial determination of probable cause must take place for the continued detention of a person charged with a misdemeanor. The court further held that if there is no probable cause, the defendant must be discharged from custody. The rationale for this decision was an accommodation between an individual’s right to liberty and the State’s duty to control
The unfinished business report prepared for the Assembly digested the bill as passed by the Assembly: “As passed by the Assembly, this bill established a procedure for determining probable cause in misdemeanor cases where the defendant is in custody at the time he or she appears before the magistrate for arraignment and upon motion of counsel. Specifically, the bill: [¶] 1) Required the court to determine the probable cause issue immediately, or for good cause continue the hearing for up to three days; [¶] 2) Required the court, in determining probable cause, to consider any warrant or supporting affidavits, the sworn complaint and other documents of similar reliability; and [¶] 3) Required the court to set the matter for trial if probable cause exists, or else dismiss the complaint.” (Assem. Off. of Research, Unfinished Business Analysis of Assem. Bill No. 2931, amended July 9, 1980 & Cone. Sen. Amends, to Assem. Bill No. 2931, Aug. 19, 1980, p. 1, italics added.) No reference in the Assembly unfinished business report prepared after Senate action is made to dismissal of individual counts.
Once legislative action was completed, Assembly Bill No. 2931 was sent to Governor Brown for review. As noted, Assembly Bill No. 2931 enacted sections 991 and 1043. The enrolled bill report prepared by then Legal Affairs Adviser Anthony J. Kline discusses the legislation’s purpose and effect: “This bill makes two separate changes in criminal procedures in municipal court. [¶] . . . Case law currently provides that if a person charged with a misdemeanor is not released on bail or his own recognizance prior to arraignment, upon request, the court must hold a probable cause hearing. If it does not find probable cause, the defendant must be released pending trial. (In re Walters (1975) 15 Cal.3d 738.) [¶] This bill goes beyond the Walters’ decision and requires that the charges be dismissed if probable cause is not established, although the prosecution may thereafter refile the complaint within 15 days. [¶] This provision of the bill is opposed by both district attorneys and judges who believe it will only result in more court work and delays. They also question whether this provision is truly in the defendant’s best interest, since if charges are in fact refiled he will be rearrested and
Governor Brown did not sign Assembly Bill No. 2931. Rather, he allowed Assembly Bill No. 2931 to become law without his signature. In his September 30, 1980 letter to the Assembly, Governor Brown explained section 1043.5 provided needed procedures to control disruptive defendants during preliminary hearings.
Finally, various parties presented letters of support or opposition to Assembly Bill No. 2931. None of those letters asserts Assembly Bill No. 2931 permits the dismissal of individual counts as distinguished from the entire complaint. (Michael L. Pinkerton, Cal. Attorneys for Criminal Justice, letter to Governor Edmund G. Brown, Jr., regarding Assem. Bill No. 2931, Sept. 17, 1980, p. 1 [“This bill is needed to eliminate frivolous misdemeanor
D. Evidence Cited by Defendant in Support of His Argument that Section 991 Provides a Judge or Magistrate with the Authority to Dismiss Individual Counts
By contrast, defendant contends there are legislative documents which show the Legislature expected section 991 permitted a trial court to dismiss individual counts. A number of documents contain the following language: “Currently there is no procedure to weed out groundless misdemeanor complaints prior to trial. Proponents argue that this bill would permit the dismissal of unsupported or frivolous charges. Proponents indicate that certain indigents accused of misdemeanors can be in custody for 30 days before groundless charges can be weeded out.” (Assem. Com. on Criminal Justice (Assem. Bill No. 2931) Apr. 21, 1980, p. 2; Assem. Com. on Criminal Justice (Assem. Bill No. 2931) Apr. 28, 1980, p. 2.) Similar language appears in Senate reports: “Proponents argue that this bill would establish a procedure for the expeditious dismissal of unsupported or frivolous charges. They also state that, under the present system, people accused of misdemeanors are in custody for 30 days before groundless charges can be ascertained.” (Sen. 3d reading rep. on Assem. Bill No. 2931, as amended July 9, 1980, p. 1; Sen. Democratic Caucus, Rep. on Assem. Bill No. 2931, as amended July 9, 1980; Sen. Com. on Judiciary, Rep. on Assem. Bill No. 2931, supra, pp. 4-5; Sen. Com. on Judiciary, Rep. on Assem. Bill No. 2931, as amended May 7, 1980, pp. 4-5.)
Similarly, the Los Angeles County Municipal Court Judges’ Association argued that Assembly Bill No. 2931 created a time-consuming preliminary hearing for misdemeanors and thereby opposed the proposed legislation. (Judge Brian D. Crahan, letters to Sen. Bob Wilson and Assemblymember Harris, supra, Apr. 11 and July 13, 1980.) The Senate Judiciary Committee report identifies the opposition from the municipal court judges and comments: “The Los Angeles County Judges’ Association states that preliminary hearings for misdemeanors are unnecessary given existing procedures for challenging probable cause. [¶] The Association is also concerned that these hearings would only add to court congestion. [¶] SINCE A DETERMINATION OF PROBABLE CAUSE IS MANDATED BY BOTH THE U.S. AND CALIFORNIA SUPREME COURTS, WHAT IS THE BASIS FOR OPPOSITION BY LOS ANGELES MUNICIPAL COURT JUDGES?” (Sen. Com. on Judiciary, Rep. on Assem. Bill No. 2931, supra, at p. 5.) One additional report indirectly adverts to the municipal court judges’ congestion concerns. (Sen. Democratic Caucus, supra, at p. 1.)
E. Analysis
The weight of the evidence indicates the Legislature did not consider whether nor intend to allow for the dismissal of individual counts during the
Further, the Tucker memorandum which contains the floor statement for Assemblymember Harris states that Assembly Bill No. 2931 is merely a codification of Walters. (Tucker memorandum, pp. 1-2.) And, as explained by the Senate Judiciary Committee staff, Assembly Bill No. 2931 structures the probable cause hearing so as to comply with the Walters decision and the Fourth Amendment. (In re Walters, supra, 15 Cal.3d at pp. 750-753; Sen. Com. on Judiciary, Rep. on Assem. Bil No. 2931, supra, at pp. 1-4.) The only difference between the Fourth Amendment requirements described in Walters and Assembly Bill No. 2931 is the requirement a complaint be dismissed as distinguished from requiring the accused’s release. This was the precise issue identified by Mr. White of the district attorneys association, Mr. Kdine and Governor Brown. Nothing in Walters requires dismissal of a complaint; if probable cause is not present, the accused must be released. More to the point, nothing in Walters requires dismissal of individual counts. But, both Assembly Bill No. 2931 and Walters required discharge of a misdemeanor accused if probable cause is not present.
Second, the committee reports and other documents only refer to dismissal of the complaint, not individual counts. On 12 occasions, legislative history documents refer to dismissal of a complaint. On no occasion does any report, analysis, letter or version of Assembly Bill No. 2931 refer to dismissal of an individual count. Thus, defendant’s nonspecific references to the dismissal of frivolous charges language do not support the theory that dismissal of individual counts is appropriate. Defendant seeks to utilize committee reports to support a position which never is articulated in the legislative process— that individual counts may be dismissed. The only disposition in terms of dismissal mentioned in any legislative documents (including versions of Assem. Bill No. 2931) is the complaint’s dismissal. (§ 991, subd. (d) [“dismiss the complaint”].)
Third, defendant’s theory that the section 991 misdemeanor probable cause hearing can be analogized to preliminary hearing where individual counts can be dismissed is without merit. The preliminary hearing, an alternative to the grand jury indictment processes, has its basis in the English common law.
Here, the Legislature used language consistent only with dismissal of the entire complaint. In addition, the committee reports and other documents indicate the purpose of Assembly Bill No. 2931 was to comply with the Fourth Amendment requirements imposed by Gerstein and Walters. No such legislative history exists in the case of felony preliminary hearings which, as noted, finds its basis in English common law; the first criminal enactments after statehood; and in the California Constitution. Also, a felony preliminary hearing applies to both incarcerated and out-of-custody defendants. Section 991 applies only to in-custody defendants. And for good reason, Assembly Bill No. 2931 was adopted in response to the Fourth Amendment custody concerns identified in Gerstein and Walters. And, felony preliminary hearings and section 991 involve the use of entirely different evidence. The detention decision required by section 991 only involves the use of reports, not live sworn testimony as in the case of a felony preliminary hearing. More to the point, no committee report states that felony preliminary hearing procedures apply to the misdemeanor probable cause determination.
One additional comment is in order concerning defendant’s preliminary hearing analogy intention. At oral argument, defendant argued section 991 is a mere four sections away from section 995. Thus, defendant reasoned the Legislature intended a detained misdemeanant accused may secure dismissal of an individual count pursuant to section 991. Sections 991 and 995 are codified in part 2, title 6 of the Penal Code which is entitled, “Pleadings and Proceedings Before Trial.” Chapter 1 of title 6, in which section 991 appears, is entitled, “Of the Arraignment of the Defendant.” Section 995 is not in chapter 1 of title 6. And for good reason, section 995 is not an arraignment-related provision. Rather, section 995 appears in chapter 2 of title 6 which is entitled, “Setting Aside the Indictment or Information.” Accordingly, sections 991 and 995 appear in separate chapters directed at different stages of the
Finally, in engaging in construction of all statutes, ambiguous or otherwise, the most important consideration is the language chosen by the Legislature. (In re Ethan C., supra, 54 Cal.4th at p. 627; Pineda v. Williams-Sonoma Stores, Inc., supra, 51 Cal.4th at pp. 529-530.) As noted, section 991 only refers to dismissal of the entire complaint. Thus, if there is sufficient ambiguity to warrant judicial construction, the words referencing dismissal of the complaint selected by the Legislature in section 991 conclusively resolve the issue. (§ 991, subd. (d) [“If the court determines that no such probable cause exists, it shall dismiss the complaint and discharge the defendant.”].)
In a similar vein, section 991, subdivision (d) makes little sense if defendant’s statutory construction is adopted. Section 991, subdivision (d) states in part: “If, after examining these documents, the court determines that there exists probable cause to believe that the defendant has committed the offense charged in the complaint, it shall set the matter for trial. [¶] If the court determines that no such probable cause exists, it shall dismiss the complaint and discharge the defendant.” If probable cause is not present, the complaint must be dismissed and the defendant discharged. No other reading of section 991, subdivision (d) is plausible. Defendant’s theory, which allows for dismissal of not all the counts but no discharge of an accused, cannot be supported by the statutory language. Defendant does not argue that he would be entitled to discharge because two of the three counts were dismissed. Thus, the “discharge the defendant” language cannot apply to defendant. Yet that is the precise language (“discharge the defendant”) utilized by the Legislature. Section 991, subdivision (d) does not speak to what occurs when fewer than all the counts are unsupported by probable cause and dismissed. And the reason for this is that section 991 is designed to enforce the Fourth Amendment custody protections available to misdemeanants articulated in Gerstein and Walters. The statutory language, the best indication of legislative intent, does not support defendant’s theory that section 991 allows dismissal of less than all of the counts. For these collective reasons, I reach the same conclusions as did the appellate division.
On December 8, 2015, the opinion was modified to read as printed above.
Future statutory references are to the Penal Code.
Section 1043.5 states: “(a) Except as otherwise provided in this section, the defendant in a preliminary hearing shall be personally present. [¶] (b) The absence of the defendant in a preliminary hearing after the hearing has commenced in his presence shall not prevent continuing the hearing to, and including, holding to answer, filing an information, or discharging the defendant in any of the following cases: [¶] (1) Any case in which the defendant, after he has been warned by the judge that he will be removed if he continued his disruptive behavior, nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that the hearing cannot be carried on with him in the courtroom. [¶] (2) Any prosecution for an offense which is not punishable by death in which the defendant is voluntarily absent. [¶] (c) Any defendant who is absent from a preliminary hearing pursuant to paragraph (1) of subdivision (b) may reclaim his right to be present at the hearing as soon as he is willing to conduct himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings. [¶] (d) Subdivisions (a) and (b) shall not limit the right of a defendant to waive his right to be present in accordance with Section 977.”
The first paragraph of Governor Brown’s letter to the Assembly states: “I am allowing Assembly Bill [No.] 2931 to become law without my signature because it provides needed changes which will prevent criminal defendants from disrupting or frustrating court procedures. In view of the longer and more complex preliminary hearings resulting from the recent decision in Hawkins v. Superior Court (1978) 22 Cal.3d 584 [150 Cal.Rptr. 435, 586 P.2d 916], prosecutors believe this protective legislation is necessary.” (Governor Edmund G. Brown, Jr., letter to Assem. concerning Assem. Bill No. 2931, Sept. 30, 1980, p. 1.)