THE PEOPLE, Petitioner, v. THE MUNICIPAL COURT FOR THE SAN FRANCISCO JUDICIAL DISTRICT OF THE CITY AND COUNTY OF SAN FRANCISCO, Respondent; YEE NOR KONG, Real Party in Interest.
Civ. No. 51473
First Dist., Div. Three.
July 29, 1981.
122 Cal. App. 3d 176
Arlo Smith, District Attorney, Don Jacobson, Chief Assistant District Attorney, George Butterworth and Peter Aviles, Assistant District Attorneys, for Petitioner.
Joseph C. Morehead for Real Party in Interest.
OPINION
FEINBERG, J.—This petition by the People for a writ of prohibition and/or mandamus challenges a magistrate‘s determination, after a postindictment preliminary hearing, that six crimes charged as felonies should be considered misdemeanors. (
On August 6, 1980, real party Yee Nor Kong, an operator of several garment shops, was indicted by the San Francisco Criminal Grand Jury on 6 felony and 21 misdemeanor charges. The felony charges involved failure to collect and to account truthfully for employee wage taxes (
At arraignment, real party requested a postindictment preliminary examination, which took place on October 8 and 9, 1980. Testimony was presented and the grand jury transcript, as well as exhibits from the grand jury proceeding, were received into evidence by stipulation. The parties stipulated that a factual basis for each felony charge had been presented.
Thereafter, real party moved the magistrate to reduce all six felony charges to misdemeanors under
THE FACTS4
Real party in interest, Mrs. Yee Nor Kong, is a Chinese-born woman who has been engaged in the operation of several small shops which produce finished clothing for various local garment dealers. Mrs. Kong was educated in Hong Kong and has only an elementary knowledge of the English language and no formal business education. She had never been arrested prior to this incident and had never been given any warnings or admonitions by the Department of Employment Development.
Evidence introduced at the preliminary examination established probable cause to believe that Mrs. Kong had conspired with as many as 105 employees to assist them in obtaining partial unemployment insurance compensation to which they were not entitled. To conceal such fraud, Mrs. Kong falsified the permanent corporate payroll records and engaged in an “under-the-table” payment plan. As a result of these falsifications, real party under-reported to the State of California earnings for her employees on at least three “D.E.3” quarterly reports, which understatement resulted in underpayment to the state of $25,000 for the last three quarters of employee personnel tax withholding, unemployment contributions, and disability contributions for one of the four worksites alone. Of the 26 employees whose records were presented in full for demonstrative purposes (105 had made claims), the loss to the state for partial unemployment insurance compensation with supporting documentation and/or surveillance is $42,461.
In addition, there is a possible loss to the state for fraudulent partial unemployment insurance compensation claims by real party‘s employees of $2,000 per month for the three remaining worksites. The total loss to
Petitioner makes the following contentions:
1. Mandamus is available to the People to review the magistrate‘s determination under
2. The magistrate had no jurisdiction to reduce the charged felonies to misdemeanors under
3. If the magistrate did have jurisdiction to reduce the charged felonies, he abused his discretion in so doing and his determination must be reversed.
We agree that mandate is available but the review afforded by mandate is not as expansive as petitioner suggests.
We hold that a magistrate, in the context of a postindictment preliminary examination, has jurisdiction under
We hold that mandate is not available to review a judicial abuse of discretion in a criminal case. Therefore, we shall not reach the question as to whether there was an abuse of discretion in the case at hand.
We explain:
I. Is Mandate Available to the People in a Criminal Proceeding Where Concededly Appeal Will Not Lie?
The seminal case is People v. Superior Court (Howard) (1968) 69 Cal.2d 491 [72 Cal.Rptr. 330, 446 P.2d 138]. In Howard, the trial court, on its own motion pursuant to
The People petitioned for a writ of mandate to vacate the order dismissing the information. The court issued an alternative writ and then denied the peremptory writ, stating, “mandate is not available for this purpose.” (Id., at p. 493.) Again, the court, in forthright fashion, wrote, “Is mandate permissible to review the determination made under this section [
The predicate upon which the Howard court came to its conclusion is that “[t]he restriction on the People‘s right to appeal is not merely a procedural limitation allocating appellate review between direct appeals and extraordinary writs but is a substantive limitation on review of trial court determinations in criminal trials.” (Id., at p. 498, italics added.) Thus, “[t]o permit the People to resort to an extraordinary writ to review where there is no right to appeal would be to give the People the very appeal which the Legislature has denied to them.” (Id., at p. 499.)
Does this mean that mandate is never available to the People to review a nonappealable order? Not so. It is an appropriate vehicle for review where the trial court has acted in excess of its jurisdiction in the traditional sense only, that is to say, “where the trial court has acted without jurisdiction of the subject matter or of the person.” (Id., at p. 500.) It appears clear to us that the Howard court disapproved of a broader reading of the phrase “in excess of jurisdiction” as it might apply in the circumstance of a civil case. (Id., at pp. 500-501.)
Unfortunately, the Howard court, having clearly illuminated the field of extraordinary writ review of nonappealable orders sought by the People in criminal cases, then proceeded to cast a shadow by way of dicta.
Said the court “[a]ssuming that in some cases the matter may be of such importance that mandate may be available to the People to review determinations where appeal does not lie, we are satisfied that the proper balancing of these considerations [preventing harassment of the accused as against correction of possible errors] prohibits review by mandate at the request of the People where . . . there is a danger of further trial or retrial.” (Id., at p. 501, italics added.) The court concluded its opinion, ”Assuming we may review the merits in the instant case, we are satisfied that the record does not show an abuse of discretion . . . .” (Id., at p. 505, italics added.)
Most reluctantly we disagree with these cases. We believe Howard, and the Supreme Court cases that have followed it, direct otherwise.
In People v. Superior Court (Edmonds) (1971) 4 Cal.3d 605 [94 Cal.Rptr. 250, 483 P.2d 1202], a motion to suppress evidence was made by defendant pursuant to
The court held that though no specific statutory authority existed for mandate to issue on behalf of the People to set aside a suppression order made during trial, nevertheless, under general principles of law, if the trial court had no jurisdiction to entertain the renewed suppression motion at trial, the People would be entitled to mandate. But what did the court mean by “no jurisdiction.” Referring to Howard, the Edmonds court said, “[W]e determined [in Howard] that ‘the extension of review beyond the limits which the Legislature has deemed appropriate is not warranted where the trial court has not exceeded its jurisdiction.’ [Citation]; italics added.) We disapproved certain prior cases which had suggested that every judicial act in excess of power is also an excess of
Edmonds has, as we see it, dispelled the shadow cast by the dicta quoted above from Howard. Two conditions must be met before mandate will issue to reverse or set aside at the request of the People, a nonappealable order.
1. The order complained of must have been made without jurisdiction of the person or of the subject matter, the traditional scope of mandamus, and
2. the reviewing court must balance the error complained of by the People against the risk of harassment to the defendant, i.e., the possibility that if the peremptory writ issues, the defendant will be subjected to further trial or retrial.
We believe that our analysis of Howard and Edmonds is supported in People v. Krivda (1971) 5 Cal.3d 357, 364, footnote 5 [96 Cal.Rptr. 62, 486 P.2d 1262] (partially disapproved on other grounds in Madril v. Superior Court (1975) 15 Cal.3d 73, 77 [123 Cal.Rptr. 465, 539 P.2d 33] and People v. Kaanehe (1977) 19 Cal.3d 1, 10-11, footnote 6 [136 Cal.Rptr. 409, 559 P.2d 1028]); People v. Superior Court (Levy) (1976) 18 Cal.3d 248, 250-252 [133 Cal.Rptr. 624, 555 P.2d 633]; People v. Drake (1977) 19 Cal.3d 749, 758-759 [139 Cal.Rptr. 720, 566 P.2d 622] (dicta); People v. Superior Court (Stanley) (1979) 24 Cal.3d 622, 625 [156 Cal.Rptr. 626, 596 P.2d 691].6
Concededly, the magistrate had jurisdiction of the person. But, petitioner argues, he did not have jurisdiction of the subject matter. Put another way, even if the magistrate could have reduced the charges pursuant to
In support of that proposition, petitioner has developed an ingenious interpretation of Hawkins v. Superior Court (1978) 22 Cal.3d 584 [150 Cal.Rptr. 435, 586 P.2d 916]. We admire the ingenuity and disagree completely.
The essence of petitioner‘s argument is that Hawkins “recommended a procedure whereby a magistrate could take cognizance of the case, entertain the hearing, and then return the matter to Superior Court, thus perfecting the indictment.”
Petitioner tells us that in a postindictment proceeding before a magistrate, the magistrate acts like a master. He has the sole function of conducting a hearing to determine whether there is sufficient competent evidence to bind the defendant over for trial. The magistrate cannot set bail, cannot issue discovery orders, and, in short, does not have the power of a magistrate. Thus, Hawkins, not only explicitly developed a new procedure, the postindictment complaint, it implicitly created a new judicial officer, someone who is more than a master and less than a magistrate, neither fish nor fowl nor good red herring.
Petitioner has cited no authority for this astounding result. In fact, there is authority directly contrary to the proposition advanced by petitioner, overlooked, no doubt, through inadvertence, which authority we shall discuss below.
Briefly, we advance our own view as to what Hawkins means.
Prior to Hawkins, only defendants who had been prosecuted by complaint had a right to a preliminary hearing. In holding that the denial of this right to a defendant charged by indictment amounts to a violation of equal protection guaranteed by the state Constitution, the Hawkins court noted the advantages which a defendant derives from such a hearing: cross-examination of prosecution witnesses to aid in their impeachment at trial, preservation of favorable testimony of witnesses who may not appear at trial, access to information about the case against him, and opportunity for counsel to argue before a judge on such matters as setting bail or psychiatric examination (id., at p. 588), as well as the most obvious advantage of having a “far more meaningful probable cause determination” (id., at p. 592). In contrast to these protections afforded a defendant prosecuted by complaint is the grand jury procedure in which the prosecutor “decides what evidence will be heard, how it is to be presented, and then advises the grand jury on its admissibility and legal significance.” (Ibid.)
It is therefore apparent from the foregoing discussion that the Hawkins court meant to grant those indicted equal rights with those whom the People chose to begin prosecution by way of complaint, by granting indicted defendants the right to require the prosecution to file a complaint and go to a preliminary examination. Although Hawkins does not specifically state that a magistrate has the authority to declare a felony to be a misdemeanor in a postindictment preliminary hearing, nothing in the opinion precludes assertion of that authority under
Petitioner warns us of the horrendous procedural morass into which we would lead the criminal judicial system were we to hold contrary to the petitioner‘s position. For, says petitioner, there will be at one and the same time misdemeanor proceedings in municipal court and a valid, subsisting true bill lodged in superior court, both proceedings involving the same charges. We need not set forth the problems envisaged by petitioner in painful detail for petitioner‘s fears rest upon a false premise, namely that when a complaint is filed, postindictment, there remains a valid, subsisting true bill in superior court.
Hawkins tells us that “If the defendant makes a timely request for such a preliminary hearing, at the direction of the court the prosecuting attorney shall refile the indictment as a complaint, thus activating the procedures set forth in the Penal Code (see Pen. Code, § 859 et seq.).” (Hawkins v. Superior Court, supra, 22 Cal.3d at p. 594, italics added, fn. omitted.)7 We do not see how the court could have made it more plain that the postindictment defendant who demands a preliminary examination stands in the same position as a nonindicted defendant charged in a complaint with a felony. Certainly, the Supreme Court knows the difference between filing a complaint and proceeding under
Finally, with the simplicity with which Alexander solved the riddle of the Gordian knot, the court in Martinez v. Superior Court (1980) 106 Cal.App.3d 975 [165 Cal.Rptr. 267], solved the problems foreseen by
Thus, the indictment continues to exist in form only, having already served its purpose, and presents no obstacle to the exercise of authority under
CONCLUSION
We hold that the magistrate did not act in excess of jurisdiction because he did have jurisdiction of the person and the subject matter. Therefore, mandate will not lie.
It is not for us, the courts, to afford petitioner review when the Legislature has not granted it. If appellate review of an order determining a felony to be a misdemeanor is desired by the People, let petitioner go to the Legislature. The Legislature has the power. If in its wisdom it chooses to exercise it, so be it.
The peremptory writ is denied; the alternative writ is discharged.
White, P. J., concurred.
SCOTT, J.—I concur in the judgment. I agree that the magistrate, after a postindictment preliminary hearing, has the authority where an offense is punishable as a felony or as a misdemeanor to determine “that the offense is a misdemeanor” pursuant to the provisions of
I also agree that the determination of the magistrate that the offense is a misdemeanor cannot be reviewed by extraordinary writ. In People v. Drake (1977) 19 Cal.3d 749 [139 Cal.Rptr. 720, 566 P.2d 622] the court held that the exercise of discretion by the trial court in reducing an offense to a lesser included offense after conviction pursuant to
Here, too, the People concededly have no statutory right of appeal and to allow review by mandamus would in the words of the Howard court “give the People the very appeal which the Legislature has denied them.” (People v. Drake, supra, at p. 759.)
I disagree, however, with that portion of the majority opinion that expresses a need to disagree with a number of Court of Appeal opinions approving review by writ of mandamus of various trial court orders. (See majority opn., p. 182, fn. 5.) By implication the majority also disapproves a number of uncited Court of Appeal opinions. (E.g., People v. Municipal Court (Gelardi) (1978) 84 Cal.App.3d 692 [149 Cal.Rptr. 30] and cases cited therein.) All of those cases are simply different from our own and their examination is not pertinent to our decision. Their disapproval by the majority interjects unnecessary uncertainty into the law.
A petition for a rehearing was denied August 28, 1981, and petitioner‘s application for a hearing by the Supreme Court was denied October 22, 1981.