IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Appellant,
S114184
v.
Ct.App. 4/3 G028417, G028422
WILLIS WILLIAMS,
) Orange
County
Defendant and Respondent.
) Super. Ct. No. M9119, 00WF2351
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
1
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),1 and
battery with serious bodily injury in violation of section 243, subdivision (d). The
complaint further charged a three-year sentence enhancement under section
12022.7, subdivision (a), for personally inflicting great bodily injury in the
commission of a felony and alleged that defendant had suffered two prior
convictions for serious or violent felonies within the meaning of section 667,
subdivision (e)(1), and had served a prior prison term for one of those offenses
within the meaning of section 667.5, subdivision (b).
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 Valley
on the afternoon of October 8, 2000, defendant engaged in a verbal dispute with
the victim, James Hundley, while they were playing on opposite teams. The
1
All further statutory references are to the Penal Code, unless otherwise
noted.
2
dispute centered around whether one of defendant’s teammates had been fouled.
The victim said there was no foul because it was a “late call.” Defendant
disagreed, saying, “whether or not it’s a late call, you know, it’s still a foul.” The
exchange ended, but a short time later defendant asked the victim: “If I hacked
you up and you woke up in a hospital bed, you woke up and yelled ‘foul,’ would it
still be a foul?” The victim responded that that would not happen. Defendant did
not appear to be angry.
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
3
1385[2] and reduce the charges to a misdemeanor.” The court docket states: “The
Court hereby exercises its discretion under PC 17B(5)[3] and declares this matter to
be a Misdemeanor as to count(s) 1, PC 245 (A) (1) – ASSAULT WITH A
DEADLY WEAPON. [¶] The Court hereby exercises its discretion under PC
17B(5) and declares this matter to be a Misdemeanor as to count(s) 2, PC 243 (D)
– BATTERY WITH SERIOUS BODILY INJURY.”
On November 15, 2000, the People noticed a motion to reinstate the felony
complaint pursuant to section 871.54 to be heard on November 29, 2000. On
November 29, 2000, the hearing on the motion was continued to December 15,
2000.
On December 5, 2000, defendant entered pleas of guilty to the
misdemeanor counts over the objection of the prosecutor, who asked that the
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: [¶] . . . [¶] (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.”
4
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 . . . .”
4
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(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(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.
5
DISCUSSION
The prosecution in a criminal case has no right to appeal except as provided
by statute. (People v. Douglas (1999) 20 Cal.4th 85, 89.) “The Legislature has
determined that except under certain limited circumstances the People shall have
no right of appeal in criminal cases. [Citations.] . . . [¶] The restriction on the
People’s right to appeal . . . is a substantive limitation on review of trial court
determinations in criminal trials.” (People v. Superior Court (Howard) (1968) 69
Cal.2d 491, 497-498.) “Appellate review at the request of the People necessarily
imposes substantial burdens on an accused, and the extent to which such burdens
should be imposed to review claimed errors involves a delicate balancing of the
competing considerations of preventing harassment of the accused as against
correcting possible errors.” (Id. at p. 501.) Courts must respect the limits on
review imposed by the Legislature “although the People may thereby suffer a
wrong without a remedy.” (Id. at p. 499.)
The People assert that the two appeals at issue here are authorized by
section 1238.5 The appeal from the denial of the People’s motion pursuant to
5
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.
(Footnote continued on next page.)
6
section 871.5 to reinstate the felony complaint is expressly authorized by
subdivision (a)(9) of section 1238, which 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.” Regarding the appeal from the order
determining the charged offenses to be misdemeanors, 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
(Footnote continued from previous page.)
(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. [¶]
. . . [¶].
(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.”
7
subdivision (a)(8) of section 1238, which permits an appeal from “[a]n order or
judgment dismissing or otherwise terminating all or any portion of the
action . . . .” We first will consider the appeal from the denial of the People’s
motion to reinstate the felony complaint.
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) 4 Cal.App.4th 340, 342, however, held that if the superior court lacks
jurisdiction to entertain a section 871.5 motion, the Court of Appeal lacks
jurisdiction to hear an appeal from that ruling because “our jurisdiction derives
from the superior court in these instances.” We disagree. As this court recognized
in Rescue Army v. Municipal Court (1946) 28 Cal.2d 460, 464: “A court has
jurisdiction to determine its own jurisdiction, for a basic issue in any case before a
tribunal is its power to act, and it must have authority to decide that question in the
first instance.” Because the superior court has jurisdiction to determine the extent
of its own jurisdiction, it follows that the Court of Appeal has jurisdiction to
review the superior court’s determination. Accordingly, we disapprove the
contrary statement in People v. Hanley, supra, 4 Cal.App.4th 340, 342, and
conclude that the People may appeal the superior court’s denial of its motion to
reinstate the felony complaint pursuant to section 871.5.
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
8
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) 21 Cal.3d 749, in which we held that a magistrate lacked the authority to
dismiss a prosecution in furtherance of justice under former section 1385 and,
therefore, a magistrate’s order discharging a defendant following a preliminary
examination, or a magistrate’s purported dismissal of the prosecution, did not
trigger the protection of section 1387, which bars further prosecution if an action
has been twice dismissed.6 In a footnote, this court “wonder[ed] why the
Legislature thought it desirable to restrict section 1387’s bar to dismissals” that are
granted pursuant to section 1385. (People v. Peters, supra, 21 Cal.3d 749, 751, fn.
1.) The Legislature responded in 1980 by changing several statutes, including
amending section 1385 to permit a “judge or magistrate” to dismiss an action in
the furtherance of justice, amending section 859b7 to require a magistrate to
dismiss a felony complaint if a defendant who is in custody is not arraigned within
10 days, amending section 8618 to require a magistrate to dismiss a felony
complaint if the preliminary examination is not completed in one session, and
6
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 . . . .”
7
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 . . . .”
8
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.”
9
amending section 8719 to empower a magistrate to dismiss a felony complaint
following a preliminary examination if the evidence is insufficient to hold the
defendant to answer. (Stats. 1980, ch. 938, §§ 1-3, 7, pp. 2965-2966, 2968.) In
addition, the Legislature added section 871.5, which permitted the prosecution to
bring a motion in superior court to reinstate the complaint if it was dismissed by
the magistrate pursuant to this new statutory authority. As originally enacted,
section 871.5 specifically referenced each of the statutes discussed above, stating,
in pertinent part: “If an action, or a portion thereof, is dismissed by a magistrate
pursuant to Sections 859b, 861, 871 or 1385, the prosecutor may make a motion
. . . in the superior court within 10 days after the dismissal to compel the
magistrate to reinstate the complaint or a portion thereof . . . on the ground that, as
a matter of law, the magistrate erroneously dismissed the action or a portion
thereof.” (Stats. 1980, ch. 938, § 4, p. 2966.)
Courts have resisted prosecutors’ efforts to expand the reach of section
871.5 beyond its terms. In People v. Hanley, supra, 4 Cal.App.4th 340, the
defendant was charged by felony complaint with driving under the influence of
alcohol and driving with a blood-alcohol content of .08 percent or more in
violation of Vehicle Code section 23152, subdivisions (a) and (b), having suffered
three prior convictions within the previous seven years. Former Vehicle Code
section 23175 (Stats. 1991, ch. 1091, § 160, p. 5171; now Veh. Code, § 23550),
provided that a violation of Vehicle Code section 23152 with three prior
convictions could be prosecuted as either a felony or a misdemeanor. Upon the
9
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 . . . .”
10
defendant’s motion, however, the magistrate struck one of the alleged prior
convictions. A violation of Vehicle Code section 23152 with two prior
convictions within the previous seven years is not a wobbler offense, but is a
straight misdemeanor. (Former Veh. Code, § 23170, Stats. 1988, ch. 1415, § 9,
p. 4805; now Veh. Code, § 23546.)
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) 128 Cal.App.3d 992. In Vlick, the
11
prosecutor announced on the day set for the preliminary examination that he could
not proceed because another magistrate had granted a motion to suppress all of the
People’s evidence. The case was dismissed pursuant to section 871. The People
filed a motion pursuant to section 871.5 to review the rulings suppressing the
evidence and dismissing the complaint. The superior court granted the People’s
section 871.5 motion and reinstated the complaint, ruling that the People’s
evidence should not be suppressed. Following a preliminary examination at which
the defendant was held to answer, the defendant filed a section 995 motion
arguing that, in ruling on the section 871.5 motion, the superior court did not have
jurisdiction to review the order suppressing evidence, because section 1538.5
provides the exclusive and comprehensive remedy.
The Court of Appeal in Vlick concluded, in language that is broader than
was necessary to decide the issue before the court, that “section 871.5 was
intended by the Legislature to be used by the People for a superior court review of
an erroneous dismissal by a magistrate arising out of the magistrate’s ruling as a
matter of law on any motion.” (Vlick v. Superior Court, supra, 128 Cal.App.3d
992, 998.) Upon review of a dismissal pursuant to section 871, which is one of
the dismissal statutes listed in section 871.5, the People could argue that the
dismissal was the result of a ruling on a motion to suppress evidence that was
erroneous as a matter of law.
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
12
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) 61 Cal.2d 520, 524, fn. 2.)
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 list of dismissal orders that could
be reviewed pursuant to section 871.5. (Stats. 1993, ch. 542, § 1, p. 2743.)
13
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) 29 Cal.App.4th 323.
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, 29 Cal.App.4th 323, 327.)
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
14
reduced the felony charges to misdemeanors pursuant to section 17, subdivision
(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 the 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, 29 Cal.App.4th 323, 331-334.)
The Court of Appeal in Feinstein identified the “significant issue” as “the
ultimate effect of the order under review. Where the order precludes the
prosecutor from proceeding to trial on the felony offenses originally charged, it
must be construed as a dismissal within the meaning of section 871. . . . [T]he
effect of the magistrate’s order as to both counts of the complaint was to preclude
the prosecution of defendant on felony charges because the evidence of the
felonies was insufficient. We are satisfied that this order constitutes a dismissal
within the meaning of section 871.” (People v. Superior Court (Feinstein), supra,
29 Cal.App.4th 323, 332.)
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
15
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, 29 Cal.App.4th 323, 334.) The magistrate in the present case acted
pursuant to a statute not enumerated in section 871.5, section 17(b)(5), thereby
distinguishing the present case from Feinstein.
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.
Appeal from Order Determining 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
16
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) 21 Cal.App.4th 1517, upon which the People rely,
is distinguishable. The defendants in Booker were charged with felony violations
of Unemployment Insurance Code section 2101, which proscribes willfully
making a false statement or representation, knowingly failing to disclose a
material fact, or using a false name or social security number or other false
identification to obtain unemployment insurance. The penalty for such an offense
is set forth in Unemployment Insurance Code section 2122, which provides that a
“violation of this chapter” is punishable either as a misdemeanor or a felony
“[e]xcept as provided in Section 2117, 2117.5, 2118, and 2118.5.” Section 2117
makes it a straight misdemeanor to fail to file any return or report or supply any
information required by this code, “with or without intent to evade any
requirement of this code.”
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
17
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 subdivisions (a)(1) and (a)(8) of section 1238, because the court’s
order was “tantamount to dismissal of the felony charges against the defendants.”
(People v. Booker, supra, 21 Cal.App.4th 1517, 1521.) The Court of Appeal
correctly discerned that Unemployment Insurance Code section 2122 sets forth the
penalty for a violation of section 2101, whereas section 2117 only sets forth the
penalty for a violation of section 2117 itself.
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.10 It was not, as in the present case, a
determination under section 17(b)(5) that a wobbler offense charged as a felony is
a misdemeanor.
The People also rely upon our decision in People v. Statum (2002) 28
Cal.4th 682, in which we held that a superior court’s order at the time of
sentencing reducing a felony conviction for a wobbler offense to a misdemeanor
was appealable under section 1238, subdivision (a)(6) as “[a]n order modifying
10
We are not called upon to decide, and thus express no view upon, the
correctness of the holding in People v. Booker, supra, 21 Cal.App.4th 1517, 1521,
that an order without a statutory basis that a charged felony offense must be
prosecuted as a misdemeanor is tantamount to a dismissal.
18
the verdict or finding by reducing the degree of the offense or the punishment
imposed or modifying the offense to a lesser offense.” The defendant in Statum
pled guilty to a felony violation of Vehicle Code section 2800.2. The court,
however, imposed a term in county jail, which reduced the offense to a
misdemeanor under section 17, subdivision (b)(1). We held that this modified a
felony verdict or finding to a misdemeanor, noting: “Our case law has
consistently treated the misdemeanor as a lesser offense than the felony wobbler.”
(People v. Statum, supra, 28 Cal.4th 682, 689.)
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 (a)(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 otherwise terminated. Nothing in section 1238
authorizes an appeal from such a modification prior to trial.
The People and the dissent also rely upon our statement in People
v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 976, rejecting “defendant’s
argument that a trial court’s exercise of discretion under the authority of section
17(b) should be unreviewable . . . .” The dissent additionally asserts that this court
in Alvarez “found ‘no authority immunizing a trial court’s discretionary
decisionmaking from some level of review, however, deferential.’ [Citation.]”
19
(Dis. opn. of Baxter, J., post, at p. 1.) The People and the dissent take these
statements out of context. Alvarez arose from an order at sentencing declaring a
felony conviction for a wobbler offense to be a misdemeanor. The People
petitioned for writ review. The sentence in our opinion that is quoted in part by
the People and the dissent concerned the scope of the trial court’s discretion; we
said in full: “Initially, we reject defendant’s argument that a trial court’s exercise
of discretion under the authority of section 17(b) should be unreviewable, either as
a matter of parity with the prosecutor’s unreviewable decision to charge a wobbler
as a felony or misdemeanor [citation] or as a matter of constitutional mandate
under the separation of powers doctrine. [Citation.]” (Ibid.) We did not state in
Alvarez that a trial court’s exercise of discretion under section 17(b) must, in all
circumstances, be reviewable. Nor did we state that a magistrate’s exercise of
discretion must be reviewable. And we did not consider under what circumstances
an order under section 17(b) is appealable. As noted above, “an opinion is not
authority for a proposition not therein considered.” (Ginns v. Savage, supra, 61
Cal.2d 520, 524, fn. 2.) The conclusion of the dissent, therefore, that “the majority
has now embraced what we so recently (and emphatically) rejected” (dis. opn. of
Baxter, J., post, at p. 2) is simply not true.
Our conclusion is consistent with our holding in People v. Drake (1977) 19
Cal.3d 749, that an order modifying a verdict finding the defendant guilty of
robbery to a finding of guilt of the lesser included offense of grand theft was not
appealable by the People pursuant to subdivision (a)(1) of former section 1238.
As we observed, “the order of the trial court modifying its finding of guilt
manifestly was not an order ‘setting aside the indictment, information, or
complaint’ appealable under subsection (1) of subdivision (a); defendant was
found guilty under the felony information originally filed in this case.” (People
20
v. Drake, supra, 19 Cal.3d 749, 757.) We further concluded that the order
modifying the verdict to a lesser offense was not an action “otherwise terminating
the action” within the meaning of subdivision (a)(8) of section 1238: “[T]he order
from which the People seek to appeal did not terminate the action at all; following
that order the action simply proceeded into the sentencing phase. The People
attempt to circumvent this fact by the conceptual device of characterizing the
modification by the judge as having ‘terminated the action on the portion of the
information charging first degree robbery.’ None of the cases cited by the People
invokes such a diluted concept of ‘termination’ [citations] . . . . We decline to . . .
manipulate the accepted concept of ‘terminating the action’ . . . .” (Drake, supra,
19 Cal.3d 749, 757-758, fn. omitted.)11
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
11
Following our holding in Drake, the Legislature amended subsection (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, 28 Cal.4th 682, 691.)
21
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], subd.
(a)(2) [order sustaining a demurrer], subd. (a)(7) [order dismissing a case prior to
trial], 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) 201
Cal.App.3d 1346, 1350-1351; People v. Superior Court (Chico etc. Health
Center) (1986) 187 Cal.App.3d 648; but see People v. Municipal Court (Kong)
(1981) 122 Cal.App.3d 176.) Although as a general rule the People may not seek
an extraordinary writ when there is no right to appeal (People v. Superior Court
(Howard), supra, 69 Cal.2d 491), this general rule may not bar writ review of a
magistrate’s decision declaring a wobbler to be a misdemeanor, because the
identical decision would be appealable if it were made at the time of sentencing
(People v. Statum, supra, 28 Cal.4th 682). The People in this case did not timely
seek writ review, so we need not decide whether the People have such a remedy.
22
Suffice it to say that, contrary to the People’s contention, our conclusion that the
People may not appeal a magistrate’s decision declaring a wobbler to be a
misdemeanor does not necessarily mean that they have no means of challenging
such a decision. Therefore, the dissent’s dire predictions of the evils that would
ensue if rulings like the one in the present case are insulated from review are
premature.
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.
MORENO, J.
WE CONCUR: GEORGE, C. J.
KENNARD,
J.
WERDEGAR,
J.
23
DISSENTING OPINION BY BAXTER, J.
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).1 I respectfully
disagree.
The result reached by the majority is surprising. As the majority concedes
(maj. opn., ante, at p. 22), the People have the right to appeal the very same
determination when made at sentencing. (People v. Statum (2002) 28 Cal.4th 682
(Statum).) Therefore, the effect of today’s ruling is merely to bar the People from
appealing only when the order is made at an early stage, on a thin or nonexistent
record, and hence is more likely to be wrong.
The analysis used by the majority is novel. In People v. Superior Court
(Alvarez) (1997) 14 Cal.4th 968, we rejected the argument “that a trial court’s
exercise of discretion under the authority of section 17(b) should be unreviewable”
(People v. Superior Court (Alvarez), supra, at p. 976) and found “no authority
immunizing a trial court’s discretionary decisionmaking from some level of
review, however deferential.” (Id. at p. 977; see also Statum, supra, 28 Cal.4th at
p. 687.) Except for cryptic citations to conflicting Court of Appeal decisions as to
the availability of writ review in other contexts, the majority has now embraced
what we so recently (and emphatically) rejected.
1
All further statutory references are to the Penal Code.
1
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) 13 Cal.4th 497,
504.) Such review ensured that judicial officers could not thwart the three strikes
law by dismissing strike allegations “solely ‘to accommodate judicial
convenience,’ ” because of “ ‘a personal antipathy for the effect that the three
strikes law would have on [a] defendant’ ” (id. at p. 531), or because of other
“factors extrinsic to the scheme.” (People v. Williams (1998) 17 Cal.4th 148,
161.) After today’s ruling, however, a magistrate may do just that when the
charged felony is a wobbler by instead reducing the felony to a misdemeanor—
thereby eliminating the effect of the prior strike allegations—without ever having
to state reasons for reducing the felony to a misdemeanor or for dismissing the
strike allegations and without fear that this decision will ever be appealed. (Cf.
Madison, The Federalist No. 51 (Rossiter ed. 1961) p. 322 [“If angels were to
govern men, neither external nor internal controls on government would be
necessary”].)
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
2
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, 14 Cal.4th at page 977, we cautioned
that the discretion to reduce a felony to a misdemeanor under section 17,
subdivision (b) was “ ‘to be exercised in conformity with the spirit of the law, and
in a manner to subserve and not to impede or defeat the ends of substantial
justice’ ” and was therefore not “ ‘a potential without restraint.’ ” Yet the
majority, by barring an appeal and offering no views as to the availability of
review by writ (cf. Olson v. Cory (1983) 35 Cal.3d 390, 400-401; People v.
Superior Court (Manuel G.) (2002) 104 Cal.App.4th 915, 924-926), has all but
eliminated the potential for restraint.
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.2 Indeed, a review of the relevant statutes reveals that the Legislature
intended no such thing.
2
The majority hypothesizes that the Legislature, mindful of 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. 21.) 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) 47
Cal.2d 45, 53.) In other words, the Legislature is plainly willing to tolerate a
pretrial appeal that encompasses fewer than all of the charges. Moreover, it seems
implausible that the Legislature would have been concerned that a pretrial appeal
“would significantly delay the proceedings and impact the defendant’s right to a
speedy trial.” (Maj. opn., ante, at pp. 21-22.) “Given the important public
(Footnote continued on next page.)
3
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) 32 Cal.4th 804, 811),
these provisions allow the People to appeal from (1) an order or judgment that (2)
sets aside, dismisses, or otherwise terminates (3) all or any portion of the
indictment, information, complaint, or action. The majority does not dispute that
elements (1) and (3) are satisfied here; that is, the majority concedes that the
magistrate’s decision is an order relating to at least a portion of the complaint or
action. Rather, the majority’s thesis is that the magistrate’s order is not a setting
aside, dismissal, or otherwise a termination of any portion of the felony complaint
or action because it “did not preclude the People from prosecuting the wobbler
offenses charged against defendant.” (Maj. opn., ante, at p. 17.)
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 action3 has been set aside, dismissed, or
otherwise terminated. The only authority cited in support of the majority’s test is
People v. Drake (1977) 19 Cal.3d 749 (Drake), in which we held that an order
(Footnote continued from previous page.)
interests in appellate review [citation], it hardly need be said that an interlocutory
appeal by the Government ordinarily is a valid reason that justifies delay.”
(United States v. Loud Hawk (1986) 474 U.S. 302, 315.)
3
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.” (Pen. Code,
§ 683.)
4
modifying the robbery verdict to the lesser included offense of grand theft was not
appealable under section 1238, subdivision (a)(1) because it was “not an order
‘setting aside the indictment, information, or complaint,’ ” nor was it appealable
under subdivision (a)(8) because “the order from which the People seek to appeal
did not terminate the action at all; following that order the action simply
proceeded into the sentencing phase.” (Id. at p. 757.) Drake is unilluminating
here, though, inasmuch as the Legislature has since amended subdivision (a)(1)
and (8) to allow the People to appeal from an order that affects any portion of the
indictment, information, complaint, or action. (Stats. 1998, ch. 208, § 1.)
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, 19 Cal.3d at p.
757.) Here, though, defendant cannot be found guilty under the felony complaint
originally filed in this case. Once the magistrate has reduced the felony to a
misdemeanor, “the case shall proceed as if the defendant had been arraigned on a
misdemeanor complaint.” (§ 17, subd. (b)(5), italics added.)
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, 28 Cal.4th at p. 689.) Similarly,
when a magistrate makes the same order at or before the preliminary hearing, the
felony portion of the complaint or action is no more. In other words, it is set
aside, dismissed, or terminated.
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
5
erroneous. (People v. McKee (1968) 267 Cal.App.2d 509, 513 [superior court’s
order directing the People to file an information charging the lesser included
offense of involuntary manslaughter was “tantamount to dismissal of the murder
charge” under section 1238]; People v. Miles & Sons Trucking Service, Inc. (1968)
257 Cal.App.2d 697, 700 [“On appeal, the People limit their attack upon the
orders setting aside the information to its effect on specific counts or parts
thereof”]; cf. Bodner v. Superior Court (1996) 42 Cal.App.4th 1801, 1804-1806
[magistrate’s order holding defendant to answer for a charge of felony assault
instead of attempted murder was a “termination” of the murder charge under
section 1387].)4 The majority’s analysis thus does serious violence to the well
settled understanding of these terms in other contexts.
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.
4
As the majority observes, Statum held that an order reducing a felony
conviction to a misdemeanor “modified” the verdict or finding under section 1238,
subdivision (a)(6). But the majority errs in inferring that Statum’s failure to
sustain the appeal additionally under subdivision (a)(1) or (8) meant that such an
order was not also a dismissal or termination of the felony portion of the action or
charging document. (See maj. opn., ante, at p. 19.) No party urged us to sustain
the appeal in Statum under subdivision (a)(1) or (8), nor did we even cite either
subdivision. Since “ ‘an opinion is not authority for a proposition not therein
considered’ ” (maj. opn., ante, at p. 20), Statum offers no support for the
majority’s conclusion.
6
Statum, supra, 28 Cal.4th at p. 691, citing Stats. 1978, ch. 1359, § 2, p. 4511.) In
the meantime, I respectfully dissent.
BAXTER, J.
WE CONCUR:
CHIN, J.
BROWN, J.
7
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion People v. Williams
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 105 Cal.App.4th 1329
Rehearing Granted
__________________________________________________________________________________
Opinion No.
S114184Date Filed: May 16, 2005
__________________________________________________________________________________
Court:
SuperiorCounty: Orange
Judge: Kazuharu Makino and Andrew P. Banks
__________________________________________________________________________________
Attorneys for Appellant:
Tony Rackauckas, District Attorney, and Brian F. Fitzpatrick, Deputy District Attorney, for Plaintiff andAppellant.
__________________________________________________________________________________
Attorneys for Respondent:
Diane Nichols, under appointment by the Supreme Court, for Defendant and Respondent.Counsel who argued in Supreme Court (not intended for publication with opinion):
Brian F. FitzpatrickDeputy District Attorney
Post Office Box 808
Santa Ana, CA 92702
(714) 347-8789
Diane Nichols
555 West Beech Street, Suite 300
San Diego, CA 92101
(619) 696-0282
Opinion Information
| Date: | Docket Number: |
| Mon, 05/16/2005 | S114184 |
Parties
| 1 | The People (Plaintiff and Appellant) Represented by Brian Forrest Fitzpatrick Office of District Attorney P. O. Box 808 Santa Ana, CA |
| 2 | The People (Plaintiff and Appellant) Represented by Attorney General - San Diego Office P.O. Box 85266 P.O. Box 85266 San Diego, CA |
| 3 | Williams, Willis (Defendant and Respondent) Represented by Diane Nichols Appellate Defenders Inc. 555 W Beech St #300 San Diego, CA |
| Disposition | |
| May 16 2005 | Opinion: Reversed |
| Dockets | |
| Mar 11 2003 | Petition for review filed appellant People |
| Mar 12 2003 | Record requested |
| Mar 14 2003 | Received Court of Appeal record G028417-yellow plastic file-also-G028422-file jacket |
| May 1 2003 | Time extended to grant or deny review To June 9, 2003. |
| May 14 2003 | Petition for Review Granted (criminal case) Votes: George, CJ., Kennard, Baxter, Werdegar, Chin, Brown and Moreno, JJ. |
| May 29 2003 | Counsel appointment order filed Upon request of respondent for appointment of counsel, Appellate Defenders, Inc. is hereby appointed to represent respondent on his appeal now pending in this court. Respondent's brief on the merits shall be served and filed on or before thirty (30) days from the date appellant's opening brief on the merits is filed. |
| Jun 12 2003 | Opening brief on the merits filed counsel for The People, D.A. Brian F. Fitzpatrick |
| Jul 3 2003 | Request for extension of time filed In San Diego by Respondent {Willis William} asking until August 11, 2003 to file Respondent's Answer Brief on the Merits. |
| Jul 10 2003 | Extension of time granted To August 11, 2003 to file respondent's answer brief on the merits. |
| Aug 11 2003 | Answer brief on the merits filed In San Diego by counsel for Respondent {Willis Williams}. |
| Aug 29 2003 | Reply brief filed (case fully briefed) appellant The People |
| Sep 3 2004 | Received: letter from counsel for Respondent {Willis William} dated September 1, 2004 re unavailability of counsel from October 3 - October 20, 2004. |
| Dec 3 2004 | Supplemental briefing ordered The court requests the parties to file supplemental letter briefs directed to the following issues: 1. The proper application in this case, if any, of Penal Code section 1466, which governs appeals in misdemeanor prosecutions. 2. Whether the magistrate's order under Penal Code section 17, subdivision (b)(5) determining that the offenses are misdemeanors is reviewable by a petition for extraordinary writ. The parties are directed to file simultaneous supplemental letter briefs on these issues in the San Francisco office of the Supreme Court on or before Thursday, December 23, 2004. Simultaneous reply briefs may be filed in the San Francisco office of the Supreme Court on or before Thursday, January 13, 2005. |
| Dec 22 2004 | Supplemental brief filed By counsel for appellant {The People}. |
| Dec 23 2004 | Supplemental brief filed By counsel for Respondent {Willis Williams}. |
| Jan 12 2005 | Letter brief filed REPLY by counsel for Respondent {Willis William}. |
| Jan 13 2005 | Letter brief filed REPLY by counsel for appellant {The People}. |
| Feb 9 2005 | Case ordered on calendar 3/8/05 @1:30pm, S.F. |
| Mar 8 2005 | Cause argued and submitted |
| May 16 2005 | Opinion filed: Judgment reversed and affirmed. Opinion by Moreno, J. --joined by George, C.J., Kennard, and Werdegar, JJ. Dissenting opinion by Baxter, J. --joined by Chin, and Brown, JJ. |
| May 24 2005 | Rehearing petition filed appellant People |
| May 26 2005 | Time extended to consider modification or rehearing To August 12, 2005. |
| Jun 22 2005 | Rehearing denied Baxter, Chin, and Brown, JJ., are of the opinion the petition should be granted. |
| Jun 22 2005 | Remittitur issued (criminal case) |
| Jul 1 2005 | Received: Receipt for Remittitur from CA 4/3. |
| Dec 21 2005 | Compensation awarded counsel Atty Nichols - Appellate Defenders, Inc |
| Briefs | |
| Jun 12 2003 | Opening brief on the merits filed |
| Aug 11 2003 | Answer brief on the merits filed |
| Aug 29 2003 | Reply brief filed (case fully briefed) |
