People v. Peters , 21 Cal. 3d 749 ( 1978 )

Opinion

NEWMAN, J.

The People appeal from the trial court’s dismissal of an indictment dated May 5, 1976, charging that defendant committed a felony. Defendant argues that the dismissal was justified because, at a first preliminary examination on October 14 and a second on December 16, 1975, the magistrates had dismissed prosecutions of him for the same offense. Penal Code section 1387 states that “. . . dismissal of an action pursuant to this chapter is a bar to any other prosecution for the same offense if it is a felony and the action has been previously dismissed pursuant to this chapter. . . .”

In that statute, “this chapter” means chapter 8 of title 10 of part 2 of the Penal Code (“Dismissal of the Action for Want of Prosecution or Otherwise”). In chapter 8 the only words that could have authorized the magistrates’ dismissals in this case (“pursuant to this chapter”) are these in section 1385: “The court may ... in furtherance of justice, order an action to be dismissedThe issue here is whether, within the meaning of those 13 words, each magistrate was a “court” when, during the preliminary examinations on October 14 and December 16, 1975, the decision was made to dismiss the action against defendant.

There are no constitutional issues. The issues of policy are of course for the Legislature, which only two years ago extended the bar of section 1387 to felonies as well as misdemeanors.¹ Our sole concern now is the exact meaning of “court.” If in section 1385 it denotes a tribunal that may conduct a trial, contrasted with a tribunal that merely decides whether defendant should be held for trial, then the indictment here should not have been dismissed because the authority conferred by section 1385 extends only to a court. We seek, therefore, guides regarding the Legislature’s intent when it used the word “court.”

People and press do refer to “the magistrate’s court.” They even say, “In court this morning the magistrate decided to hold the suspect for trial.” (Cf. Pen. Code, § 1538.5, subd. (f). But see People v. Brite (1937) 9 Cal.2d 666, 683 [72 P.2d 122]; Fursdon v. County of Los Angeles (1950) 100 Cal.App.2d Supp. 845, 850 [223 P.2d 520].) Such loose usage does not, though, force us to a conclusion that the legislators who voted for section 1385 and its predecessor statutes believed that “court” should include magistrates as well as trial judges.

The predecessor statutes date from 1850. There were revisions in 1851, 1872, and 1951.² The 1951 revision has special significance because it reflects legislative consideration of the comprehensive “Recommendations for- Proposed Changes in Criminal Procedure in Inferior and Superior Courts of the State of California” that were submitted by Judge Hartley Shaw, Presiding Judge of the Los Angeles Superior Court’s Appellate Department. (See Final Rep. of the Special Crime Study Com. on Criminal Law and Procedure, supra, pp. 39-85.) In his report Judge Shaw’s use of “court” and “magistrate” were as follows (id., p. 43, italics added): a complaint filed with an inferior court charging a public offense of which such inferior court has original trial jurisdiction. . . .”

“1. The words ‘inferior court’ or ‘inferior courts’ include municipal courts, justices’ courts, city courts, police courts, police judges’ courts, and all courts other than superior courts, having jurisdiction to try misdemean- or charges.

“2. The words ‘competent court’ when used with reference to the jurisdiction over any public offense, mean any court the subject matter jurisdiction of which includes the offense so mentioned.

“3. The words ‘jurisdictional territory’ when used with reference to a court, mean the city and county, county, city, township or other limited territory over which the criminal jurisdiction of such court extends, as provided by law, and in case of a superior court mean the county in which such court sits.

“4. The words ‘accusatory pleading’ include an indictment, an information, an accusation, a complaint filed with a magistrate charging a public offense of which the superior court has original trial jurisdiction, and

To be stressed are (1) those last six words in paragraph 1, (2) their impact on the distinctions between “court” and “magistrate” that inhere in paragraph 4. It seems indisputable that Judge Shaw’s analyses of existing.statutes and his proposed revisions led him to conclude first, that “courts” are tribunals that have trial jurisdiction; second, that a magistrate is not an inferior court, a superior court, or a competent court. Instead, from 1850 onwards the Legislature had treated a magistrate as an official who merely decides whether a suspect should be held for trial. She or he is not a “court” because at the preliminary hearing stage there is no “trial jurisdiction.” Arguments here have not persuaded us that Judge Shaw’s analyses were incorrect then or are outdated now.

We conclude, therefore, that Penal Code section 1385 authorizes dismissals by trial courts, not magistrates. The contrary conclusion in Horner v. Superior Court (1976) 64 Cal.App.3d 638 [134 Cal.Rptr. 607] is disapproved.

The order of dismissal is reversed.

Richardson, J., and Manuel, J., concurred.

Clark, J., concurred in the judgment and opinion of the court, excepting footnote 1.

1 The harassment of defendant in this case hardly seems commendable. The first magistrate dismissed when the prosecution refused to disclose an informant’s name. Defendant’s attorney agreed to the assignment to a second magistrate apparently because the prosecution threatened to file a third complaint if the first magistrate dismissed the second complaint. Then, because the second magistrate agreed with the first, the prosecution procured the grand jury indictment. (Cf. People v. Uhlemann (1973) 9 Cal.3d 662, 666 [108 Cal.Rptr. 657, 511 P.2d 609].)

One wonders why the Legislature thought it desirable to restrict section 1387’s bar to dismissals that are “pursuant to this chapter.” (Cf. Pen. Code, §§ 871 and 995, which prescribe other forms of dismissal but are not in the chapter; also see § 999.)

2 The 1850 statute (ch. 119, § 629) authorized the “Court” to dismiss “any action after indictment.” At that time all felonies and some misdemeanors were prosecuted via a hearing followed by indictment. (Stats. 1850, ch. 119, §§ 7, 147-169, 647; ch. 86, § 5.) Since dismissals were to be after indictment the expressed power to dismiss rested with trial courts only.

In 1851 section 629 was repealed, and a new enactment empowered the “Court” to dismiss any “action or indictment.” (Stats. 1851, ch. 29, § 597.) It seems likely that the change was to allow dismissal of misdemeanors not the subject of an indictment. The People suggest here that, since section 597 used “Court" while other 1851 statutes (ch. 29, §§ 29, 507, 508, 518, 519, 684) used “Court or Magistrate,” the change was not intended to grant magistrates any power to dismiss.

The 1951 revision pertinent to our case is the deletion of “or indictment” from the phrase “action or indictment.” In the legislative history the explanation appears as follows: “ ‘Or indictment’ [was] omitted as unnecessary. If the action is gone, so are the pleadings.” (Final Rep. of the Special Crime Study Com. on Criminal Law and Procedure (1949) pp. 79-80.)

2 All further statutory references herein are to the Penal Code.