Lead Opinion
Defendant was charged with two offenses that could be prosecuted as either felonies or misdemeanors. Such alternate felony-misdemeanor offenses are commonly known as “wobblers.” The prosecutor charged the offenses as felonies, but at the conclusion of the preliminary examination, the court determined pursuant to Penal Code section 17, subdivision (b)(5) that the charges were misdemeanors. The prosecutor moved in superior court to reinstate the felony complaint under Penal Code section 871.5, which motion was denied. The People filed separate appeals from the magistrate’s order determining the charges were misdemeanors and from the superior court’s denial of the motion to reinstate the felony complaint.
We must decide whether the People may appeal the magistrate’s determination entered at the preliminary examination that the wobbler offenses were misdemeanors rather than felonies, and whether the People may appeal the superior court’s denial of the motion to reinstate the felony complaint. We conclude that the People may not appeal the magistrate’s determination under Penal Code section 17, subdivision (b)(5) that wobbler offenses charged as felonies were misdemeanors. The superior court’s denial of the People’s motion to reinstate the felony complaint is appealable, but that appeal is without merit, because the superior court could not properly review under Penal Code section 871.5 the magistrate’s determination that the wobbler offenses charged as felonies were misdemeanors.
Facts
On October 31, 2000, an amended felony complaint was filed charging defendant Willis Williams with assault by means of force likely to produce great bodily injury in violation of Penal Code section 245, subdivision (a)(1),
On November 14, 2000, a preliminary examination was held in Orange County Superior Court before Judge Andrew Banks. Evidence was introduced that during a “pickup” basketball game at a recreational center in Fountain
As play continued, the victim and defendant both pursued the basketball at the other end of the court. The victim grabbed the ball and turned his back to defendant, swinging his elbow in the process. The victim’s elbow may have hit defendant. Defendant then swung with his left arm while still behind the victim and “punched the victim in the jaw” with a closed fist. The victim fell to the court “like a tree, just straight sideways” and “bounced off the floor. He hit his head on the ground and ... he was out cold.” Defendant looked at the victim and asked him if that was a foul and then ran to his automobile.
The victim suffered a skull fracture and was taken by ambulance to a hospital while unconscious where he underwent surgery for two hematomas: one on the right frontal lobe and one on the right temporal lobe. His condition was described as “life-threatening.” It was unknown whether permanent brain damage had occurred. The victim had no memory of the incident.
The court, observing that intentional fouls are part of sports, questioned whether defendant’s actions constituted “felony conduct” and stated: “So, I’m going to exercise my discretion in the interest of justice under Penal Code section 1385
On December 5, 2000, defendant entered pleas of guilty to the misdemeanor counts over the objection of the prosecutor, who asked that the matter be continued until the court had ruled upon his motion to reinstate the felony complaint. The case was continued for sentencing to January 23, 2001.
On December 15, 2000, a hearing was held on the People’s motion to reinstate the felony complaint. On December 18, 2000, the court issued a written ruling denying the People’s motion “on the ground that Penal Code Section 871.5 does not permit review of an order reducing a felony to a misdemeanor pursuant to Penal Code Section 17[, subd.] (b)(5).” The court reasoned that the magistrate’s reduction of the felony charges to misdemeanors “cannot be construed as a dismissal” of the felony complaint, adding: “Having determined that the magistrate’s discretionary act under section 17[, subd.] (b)(5) is not a dismissal, this court lacks the authority to entertain the People’s motion, and cannot therefore reach the issue of the propriety of the reduction of the charges to misdemeanors.”
On December 21, 2000, the People filed a notice of appeal from the superior court’s December 18, 2000, order denying the motion to reinstate the felony complaint. On December 26, 2000, the People filed a notice of appeal from the magistrate’s November 14, 2000, order determining the felony counts to be misdemeanors.
The Court of Appeal consolidated the two appeals and held that the magistrate’s order reducing the felony charges to misdemeanors was “not a dismissal under section 871” and thus was not a proper subject of a motion to reinstate the felony complaint under section 871.5. Accordingly, the Court of Appeal dismissed the appeal from the motion to reinstate the felony complaint. The Court of Appeal further held that the magistrate’s order reducing the felony charges to misdemeanors was not appealable and dismissed the appeal from that order. We granted review.
Discussion
The prosecution in a criminal case has no right to appeal except as provided by statute. (People v. Douglas (1999)
The People assert that the two appeals at issue here are authorized by section 1238.
Appeal from Denial of Motion to Reinstate Felony Complaint
As noted above, subdivision (a)(9) of section 1238 permits a People’s appeal from “[a]n order denying the motion of the people to reinstate the complaint or a portion thereof pursuant to Section 871.5.” People v. Hanley (1992)
Although the Court of Appeal erred in dismissing the People’s appeal from the denial of its motion to reinstate the felony complaint, we agree with the Court of Appeal that the appeal lacks merit because the People may not seek review of a magistrate’s determination under section 17, subdivision (b)(5) (hereafter section 17(b)(5)) that a wobbler offense is a misdemeanor, by bringing a motion to reinstate the felony complaint under section 871.5.
Section 871.5 was enacted in response to our decision in People v. Peters (1978)
Courts have resisted prosecutors’ efforts to expand the reach of section 871.5 beyond its terms. In People v. Hanley, supra,
Having struck one of the alleged prior convictions, the magistrate in Hanley determined that the charged offenses were misdemeanors as a matter of law and transferred the cause to municipal court. The People moved to reinstate the felony complaint under section 871.5, the superior court denied the motion, and the People appealed.
The Court of Appeal in Hanley held that the People could not seek review of the magistrate’s ruling pursuant to section 871.5 because the magistrate did not act pursuant to any of the statutes specified in section 871.5. The court rejected the People’s argument that the magistrate actually dismissed the felony prosecution pursuant to section 1385, which is listed in section 871.5. The court noted that “Vehicle Code section 41403 permits a defendant to challenge the constitutional validity of a conviction under specified Vehicle Code sections, including section 23152, which was entered in a separate proceeding. [Citation.]” (People v. Hanley, supra, 4 Cal.App.4th 340, 343.) Relying upon the fact that there was specific statutory authorization for the superior court’s action striking the prior conviction allegation, the Court of Appeal concluded: “We have no doubt that this was a motion pursuant to Vehicle Code section 41403, and that the magistrate, following the procedures set forth therein, dismissed the Stanislaus County conviction pursuant to that statute.” (Id. at p. 344.)
The court in Hanley was not persuaded by the People’s reliance upon the decision in Vlick v. Superior Court (1982)
The court in Hanley correctly recognized that the decision in Vlick did not hold that section 871.5 may be expanded to permit review of orders not specified in section 871.5: “Vlick is not authority for extending section 871.5 to orders striking a prior conviction under Vehicle Code section 41403. In Vlick, ... the statutory authority to dismiss was section 871, one of the provisions enumerated in section 871.5. Vlick's broad language referring to dismissals arising out of a magistrate’s decision on any motion properly before him or her goes not to the subdivision (a) enumeration of certain dismissal statutes, but to subdivision (b) which mandates that the motion to reinstate must be on grounds that the magistrate erroneously dismissed the action ‘as a matter of law.’ ” (People v. Hanley, supra, 4 Cal.App.4th 340, 344.) We agree. The court in Vlick did not consider whether the People could obtain review of an order of a type that is not enumerated in section 871.5 and, of course, “an opinion is not authority for a proposition not therein considered.” (Ginns v. Savage (1964)
The decision in Hanley rejected the People’s contention that the Legislature intended section 871.5 to serve as a vehicle for reviewing all dismissals by magistrates, noting that the Legislature’s careful enumeration of the types of dismissals that fall within the ambit of section 871.5 mandates the opposite conclusion: “In our view the plain language of 871.5 evidences an intent to permit superior court review of dismissal orders by magistrates when a complaint has been dismissed pursuant to specifically enumerated statutory authority, i.e., sections 859b, 861, 871, 1008, 1381, 1381.5, 1385, 1387 or 1389. Vehicle Code section 41403 does not appear in this listing. Why should we add it?” (People v. Hanley, supra, 4 Cal.App.4th 340, 345.)
The Court of Appeal in Hanley ended its opinion by stating: “We therefore defer to the Legislature to determine whether, in the future, a magistrate’s order striking a prior under Vehicle Code section 41403 should be included within the scope of section 871.5.” (People v. Hanley, supra, 4 Cal.App.4th 340, 347.) The Legislature did not take long to respond. In 1993, the Legislature amended section 871.5 to add Vehicle Code section 41403 to the
We reach the same conclusion in the present case as the Court of Appeal did in Hanley. The list of dismissal orders that may be reviewed pursuant to section 871.5 does not include an order under section 17(b)(5) that a wobbler offense that was charged as a felony is a misdemeanor, and we decline to add it.
The People argue that the order in the present case is subject to review under section 871.5 because “[a] magistrate’s reduction of felony charges to misdemeanors constitutes a dismissal of the felony charges under Penal Code section 871,” and section 871, as noted above, is one of the dismissal statutes enumerated in section 871.5. In support of this argument, the People rely upon the decision in People v. Superior Court (Feinstein) (1994)
Unlike the present case, Feinstein did not involve an order under section 17(b)(5) that a wobbler offense that was charged as a felony was a misdemeanor. In Feinstein, the People charged the defendant with two straight felony offenses: section 243.4, subdivision (a), sexual battery by restraint, and sections 236 and 237, false imprisonment by violence, menace, fraud or deceit. The magistrate concluded that the physical restraint requisite for the felonies was not established. The magistrate “reduced” the felony charge of sexual battery under section 243.4, subdivision (a) to misdemeanor battery under section 242 and purported to strike the portion of the second count of felony false imprisonment charging that the false imprisonment was “by violence, menace, fraud or deceit,” leaving that charge as a simple violation of section 236, misdemeanor false imprisonment. The magistrate ordered the charges tried in the municipal court. (People v. Superior Court (Feinstein), supra,
The district attorney moved in superior court pursuant to section 871.5 to reinstate the felony charges, but the superior court denied the motion, concluding that it was without jurisdiction to consider the motion because the magistrate had reduced the felony charges to misdemeanors pursuant to section 17(b)(5), which is not among the type of orders that may be reviewed under section 871.5. The Court of Appeal granted the People’s petition for a writ of mandate, correctly directing die superior court to consider the section 871.5 motion, because the magistrate lacked authority under section 17(b)(5) to reduce to misdemeanors charges that were straight felonies rather than wobblers. Thus, the Court of Appeal reasoned, the magistrate’s order was effectively a dismissal pursuant to section 871, which was reviewable under section 871.5. (People v. Superior Court (Feinstein), supra,
While the above quoted language in Feinstein is quite broad, it must be considered in light of the Court of Appeal’s earlier conclusion that the magistrate’s order was not authorized by section 17(b)(5). Feinstein, therefore, cannot be read, as the People argue, to hold that any order by a magistrate that has the effect of precluding the People from prosecuting a defendant on felony charges constitutes a dismissal within the meaning of section 871 and may be reviewed under section 871.5. Rather, Feinstein stands only for the rule that a magistrate’s order purporting to “reduce” a straight felony charge to a misdemeanor is not authorized by section 17(b)(5) and, thus, constitutes a dismissal of the felony charge within the meaning of section 871. Feinstein did not involve a magistrate’s order declaring a wobbler offense charged as a felony to be a misdemeanor under section 17(b)(5), and did not hold that such an order constitutes a dismissal within the meaning of section 871.
This reading of the opinion in Feinstein is bolstered by an examination of Feinstein’s treatment of the decision in Hanley, supra, 4 Cal.App.4th 340. The court in Feinstein concluded Hanley was distinguishable because the magistrate in Hanley had acted pursuant to Vehicle Code section 41403, while in Feinstein “the only statute that lies to effect a dismissal was section 871 which is, of course, one of the statutes listed in section 871.5.” (People v. Superior Court (Feinstein), supra,
Therefore, the superior court’s denial of the People’s motion to reinstate the felony complaint was appealable, but the appeal lacks merit because the magistrate’s determination under section 17(b)(5) that the wobbler offenses charged as felonies were misdemeanors was not subject to review under section 871.5. We turn to the appeal from the order determining the charged offenses to be misdemeanors.
In arguing that the magistrate’s determination under section 17(b)(5) that the wobbler offenses were misdemeanors was appealable, the People rely upon subdivision (a)(1) of section 1238, which permits an appeal from “[a]n order setting aside all or any portion of the indictment, information, or complaint,” and subdivision (a)(8), which permits an appeal from “[a]n order or judgment dismissing or otherwise terminating all or any portion of the action.” The People argue that the magistrate’s order is appealable because it “effectively dismissed the felony offenses and precludes the People from pursuing them,” and thus is appealable because it set aside, or dismissed, or otherwise terminated all or part of the action. We reject this argument. The magistrate’s order under section 17(b)(5) did not preclude the People from prosecuting the wobbler offenses charged against defendant; it simply determined that these offenses were misdemeanors rather than felonies. The magistrate’s order was not appealable because it was not “[a]n order setting aside all or any portion of the indictment, information, or complaint” within the meaning of subdivision (a)(1) of section 1238, nor was it “[a]n order or judgment dismissing or otherwise terminating all or any portion of the action” under subdivision (a)(8) of section 1238.
People v. Booker (1994)
The superior court in Booker granted the defendants’ motion to declare the offenses to be misdemeanors, based upon the argument that the penalty for the charged violations of Unemployment Insurance Code section 2101, subdivision (a) was the misdemeanor penalty provisions of Unemployment Insurance Code section 2117, rather than the discretionary misdemeanor/felony punishment provisions of Unemployment Insurance Code section 2122. The Court of Appeal ruled that the order declaring the offenses to be misdemeanors was appealable under both subdivision (a)(1) and (8) of section 1238, because the court’s order was “tantamount to
The superior court in Booker, therefore, made an error of law in ruling that a violation of Unemployment Insurance Code section 2101 could not be charged as a felony because it was a straight misdemeanor. The Court of Appeal held that this ruling was without statutory authority and, therefore, was tantamount to a dismissal of the felony charges.
The People also rely upon our decision in People v. Statum (2002)
The People argue from our holding in Statum that a magistrate’s reduction of a felony wobbler offense “dismisses the ‘greater’ felony offense and leaves the People to prosecute only the ‘lesser’ misdemeanor offense.” But this is not what we held in Statum. To the contrary, we held that an order reducing a wobbler prosecuted as a felony to a misdemeanor at sentencing modified, rather than dismissed, the felony verdict or finding. Had we concluded, as the People urge us to do in this case, that such an order effectively dismissed the felony prosecution, the order in Statum would have been appealable under subdivision (a)(1) or (8) of section 1238. We did not so hold in Statum and we do not so hold here. In the present case, the charged offense has been modified, as we recognized in Statum, but it has not been dismissed or
The People and the dissent also rely upon our statement in People v. Superior Court (Alvarez) (1997)
Our conclusion is consistent with our holding in People v. Drake (1977)
The People argue that “[t]here is no sound reason why the Legislature would have wanted to allow an appeal from reduction orders made by a sentencing court under Penal Code section 17, subdivision (b)(1) or (3), but not reduction orders made by a magistrate under Penal Code section 17, subdivision (b)(5).” We disagree. There are significant differences between an order entered at sentencing reducing a felony conviction for a wobbler offense to a misdemeanor and a pretrial order declaring a wobbler offense charged as a felony to be a misdemeanor that could have led the Legislature to grant the People a right to appeal in one instance but not the other. An order under section 17(b)(5) is made prior to trial, when the guilt or innocence of the defendant has yet to be determined. Unlike other situations in which the People may appeal a pretrial order, the charges are not dismissed or set aside. (§ 1238, subd. (a)(1) [order setting aside all or any portion of the indictment, information, or complaint]; id., subd. (a)(2) [order sustaining a demurrer]; id., subd. (a)(7) [order dismissing a case prior to trial]; id., subd. (a)(8) [order dismissing or otherwise terminating all or any portion of the action].) Permitting a pretrial appeal by the People while the guilt of the defendant remained at issue would significantly delay the proceedings and impact the defendant’s right to a speedy trial. The Legislature has permitted such pretrial appeals by the People of charges that have not been dismissed or set aside only in very limited circumstances. (§ 1424 [order recusing a district attorney or city attorney].)
The People argue that the Legislature did not intend “to give magistrates absolute power to reduce felony wobbler offenses without any appellate review.” But our decision does not hold that a magistrate’s decision declaring that wobbler offenses charged as felonies are misdemeanors is not subject to any appellate review; we hold only that such an order by a magistrate is not appealable. We express no opinion on whether the People could obtain writ review of such decisions. (See generally People v. Superior Court (Aquino) (1988)
Conclusion
The judgment of the Court of Appeal is reversed to the extent that it dismissed the appeal from the denial of the motion to reinstate the felony complaint under section 871.5, and otherwise is affirmed.
George, C. J., Kennard, J., and Werdegar, J., concurred.
Notes
All further statutory references are to the Penal Code, unless otherwise noted.
2 Section 1385, subdivision (a) provides, in pertinent part: “The judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. The reasons for the dismissal must be set forth in an order entered upon the minutes.”
3 Section 17, subdivision (b)(5) provides: “When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances: [ffl . . . [ID (5) When, at or before the preliminary examination ... the magistrate determines that the offense is a misdemeanor, in which event the case shall proceed as if the defendant had been arraigned on a misdemeanor complaint.”
Section 871.5, subdivision (a) provides: “When an action is dismissed by a magistrate pursuant to Section 859b, 861, 871, 1008, 1381, 1381.5, 1385, 1387, or 1389 of this code or Section 41403 of the Vehicle Code ... the prosecutor may make a motion in the superior court within 15 days to compel the magistrate to reinstate the complaint. . . .”
Section 1238 provides: “(a) An appeal may be taken by the people from any of the following:
“(1) An order setting aside all or any portion of the indictment, information, or complaint.
“(2) An order sustaining a demurrer to all or any portion of the indictment, accusation, or information.
“(3) An order granting a new trial.
“(4) An order arresting judgment.
“(5) An order made after judgment, affecting the substantial rights of the people.
“(6) An order modifying the verdict or finding by reducing the degree of the offense or the punishment imposed or modifying the offense to a lesser offense.
“(7) An order dismissing a case prior to trial made upon motion of the court pursuant to Section 1385 whenever such order is based upon an order granting the defendant’s motion to return or suppress property or evidence made at a special hearing as provided in this code.
“(8) An order or judgment dismissing or otherwise terminating all or any portion of the action including such an order or judgment after a verdict or finding of guilty or an order or judgment entered before the defendant has been placed in jeopardy or where the defendant has waived jeopardy.
“(9) An order denying the motion of the people to reinstate the complaint or a portion thereof pursuant to Section 871.5.
“(10) The imposition of an unlawful sentence, whether or not the court suspends the execution of the sentence ....
“(11) An order recusing the district attorney pursuant to Section 1424. BO ... [f]
“(d) Nothing contained in this section shall be construed to authorize an appeal from an order granting probation. Instead, the people may seek appellate review of any grant of probation, whether or not the court imposes sentence, by means of a petition for a writ of mandate or prohibition which is filed within 60 days after probation is granted. The review of any grant of probation shall include review of any order underlying the grant of probation.”
Section 1387, subdivision (a) provides in part: “An order terminating an action ... is a bar to any other prosecution for the same offense if it is a felony or if it is a misdemeanor charged together with a felony and the action has been previously terminated . . . .”
Section 859b provides in part: “Whenever the defendant is in custody, the magistrate shall dismiss the complaint if the preliminary examination is set or continued beyond 10 court days from the time of the arraignment. . . .”
Section 861, subdivision (a) provides in part: “The preliminary examination shall be completed at one session or the complaint shall be dismissed, unless the magistrate, for good cause shown by affidavit, postpones it.”
Section 871 provides in part: “If, after hearing the proofs, it appears either that no public offense has been committed or that there is not sufficient cause to believe the defendant guilty of a public offense, the magistrate shall order the complaint dismissed and the defendant to be discharged . . . .”
We are not called upon to decide, and thus express no view upon, the correctness of the holding in People v. Booker, supra,
Following our holding in Drake, the Legislature amended subdivision (a)(6) of section 1238 to permit an appeal by the People from an order “ ‘modifying the offense to a lesser offense.’ ” (People v. Statum, supra,
Dissenting Opinion
Dissenting.—The majority holds that the People have no right to appeal—and thereby creates the possibility that the People have no right to challenge at all—a magistrate’s decision at or before a preliminary hearing to reduce a felony wobbler to a misdemeanor under Penal Code section 17, subdivision (b)(5).
The result reached by the majority is surprising. As the majority concedes (maj. opn., ante, at p. 833), the People have the right to appeal the very same determination when made at sentencing. (People v. Statum (2002)
The analysis used by the majority is novel. In People v. Superior Court (Alvarez) (1997)
Unfortunately, the consequence of this surprising and novel ruling is no less than an invitation to lawlessness. Consider this: Prior to today’s ruling, a magistrate could dismiss an allegation of a prior serious or violent felony conviction under the three strikes law only by complying strictly with the provisions of section 1385, and the dismissal would be “subject... to review for abuse of discretion.” (People v. Superior Court (Romero) (1996)
Here, for instance, the information charged defendant with battery with serious bodily injury and aggravated assault and alleged that he had suffered two prior convictions for serious or violent felonies under the three strikes law. The magistrate reduced the felonies to misdemeanors under section 17, subdivision (b)(5). The People appealed, invoking section 1238, subdivision (a)(1) and (8), but the appeal has now been dismissed before any appellate court could consider whether the magistrate erred in reducing the felony to a misdemeanor or in nullifying the effect of the charged strikes.
The majority’s approach is unprecedented, unusual—and dangerous. In People v. Superior Court (Alvarez), supra,
Moreover, the majority offers no plausible reason why the Legislature would have wanted to allow an appeal from an order reducing a felony wobbler to a misdemeanor by a trial court at sentencing but not from the same order by a magistrate at or before the preliminary hearing, when the facts are unknown or undeveloped.
Section 1238, subdivision (a)(1) allows the People to appeal from an order setting aside “all or any portion of the indictment, information, or complaint.” Subdivision (a)(8) allows the People to appeal from “[a]n order or judgment dismissing or otherwise terminating all or any portion of the action.” Read together (see Olmstead v. Arthur J. Gallagher & Co. (2004)
This misses the point. The proper test is not whether the People are wholly precluded from prosecuting the defendant but whether any portion of the indictment, information, complaint, or action
Moreover, even if Drake applied, it would not compel dismissal of the appeal in this case. In rejecting the People’s reliance on section 1238, subdivision (a)(1), Drake relied entirely on the fact that the defendant “was found guilty under the felony information originally filed in this case.” (Drake, supra,
I find our recent decision in Statum more instructive. In Statum, we held that a judgment imposing a county jail term for a wobbler conviction reduces the felony to “a lesser offense.” (Statum, supra,
The majority’s rejection of this straightforward application of the statute seems to rest on the assumption that it is not possible to set aside, dismiss, or otherwise terminate less than all of a charged offense. The assumption is erroneous. (People v. McKee (1968)
Accordingly, the only live issue in this case was whether an appeal from the magistrate’s order lies to the Court of Appeal under section 1238 or to the appellate division of the superior court under the similar language in section 1466. In light of the majority’s analysis foreclosing either appeal, that issue is now moot. I therefore urge the Legislature to act promptly to fill the gap so as to permit appellate review of a magistrate’s order and thereby restore the rule of law. (Cf. Statum, supra,
Chin, J., and Brown, J., concurred.
Appellant’s petition for a rehearing was denied June 22, 2005. Baxter, J., Chin, J., and Brown, J., were of the opinion that the petition should be granted.
All further statutory references are to the Penal Code.
The majority hypothesizes that the Legislature, mindful of the defendant’s speedy-trial rights, might not have wanted to permit an appeal where “the charges are not dismissed or set aside.” (Maj. opn., ante, at p. 833.) Yet subdivision (a)(1) and (8) of Penal Code section 1238 contemplates a pretrial appeal when “any portion” of the action is set aside, dismissed, or terminated—even when the only portion dismissed is a prior conviction allegation. (People v. Burke (1956)
An “action” is defined broadly as the “proceeding by which a party charged with a public offense is accused and brought to trial and punishment.” (§ 683.)
As the majority observes, Statum, supra,