Burnett v. Superior Court

• Citation: 528 P.2d 372,12 Cal.3d 865,117 Cal.Rptr. 556
• Court: California Supreme Court
• Decision Date: 26 November 1974
• Parties: , 528 P.2d 372 Allen Dean BURNETT, Petitioner, v. The SUPERIOR COURT OF ORANGE COUNTY, Respondent; The PEOPLE, Real Party in Interest. L.A. 30314.

Page 556

117 Cal.Rptr. 556

12 Cal.3d 865, 528 P.2d 372

Allen Dean BURNETT, Petitioner, v. The SUPERIOR COURT OF ORANGE COUNTY, Respondent The PEOPLE, Real Party in Interest.

L.A. 30314.

Supreme Court of California, In Bank.

Nov. 26, 1974.

Frank L. Williams, Jr., Public Defender, James R. Goff and Michael Ian Garey, Deputy Public Defenders, for petitioner.

No appearance for respondent.

Cecil Hicks, Dist. Atty., Michael R. Capizzi, Asst. Atty. Gen., Oretta D. Sears, William Bedsworth and Ronald Cordova, Deputy Dist. Attys., for real party in interest.

WRIGHT, Chief Justice.

Allen Dean Burnett seeks mandate to compel the respondent superior court to rule on petitioner's motion to set aside an information (Pen.Code, § 995) charging petitioner with two violations of Penal Code section 211 (robbery). ¹ Petitioner contends that the respondent exceeded the power vested in it when, for the purpose of receiving further testimony, it declined to rule on the motion and remanded the cause to the municipal court wherein the magistrate had held petitioner to answer at the preliminary hearing (§ 872). We agree with petitioner's contention and issue a peremptory writ commanding the respondent court either to deny the motion or, if it finds on the record that petitioner was committed without reasonable or probable cause, to grant the motion and proceed according to law. (§§ 995, 997, 998.)

Evidence adduced at the preliminary hearing discloses that a man approached a retail ice cream store on November 23, 1973, at approximately 5 p.m., told the clerk at the counter, Becky Basgall, a 16-year-old girl, that 'it was a stick-up,' and ordered her to open the cash register. His demands were ignored although he threatened to 'blow off' her head. At the preliminary hearing she testified as to the man's clothing, physical dimensions and race, but she was otherwise unable to describe his appearance because of poor lighting conditions in the late afternoon. She stated on direct examination that earlier that day when she came to the court house she had recognized a man in the hallway as her assailant. On cross-examination she stated that petitioner was the man she saw in the hallway but that she was 'not sure' he was the one who had attempted to rob her.

A 12-year-old witness, Lynn Curry, testified concerning a second incident which had occurred on the same day as the attempted robbery of the ice cream store. She stated that about 5 p.m. she and her mother were putting groceries in her mother's car in the parking lot of a market. She noticed a man approaching rapidly. He snatched a purse from her mother and ran off with it. The witness described the man as to race and clothing and such descriptions were similar to those testified to by Becky particularly with reference to a distinctive hat worn on each occasion by the assailant. Lynn also testified that earlier on the day of the preliminary examination she had seen in the hallway of the court house the man who had taken her mother's purse. She identified petitioner as that man although she admitted some confusion as to the man's height.

At the hearing on the motion to set aside the information the People were represented by two deputy district attorneys, one of whom indicated that the People would move to dismiss as 'We are going to have to refile the matter.' The deputies stated that an attempt had been made to 'work out a remand,' but that the 'defense was not amenable to that.' It appears that the deputies then reconsidered the People's position and asked the court's permission to withdraw the motion to dismiss. One deputy suggested that the court should rule on the defense motion to set aside the information; the other argued that the court had discretion to remand the cause to the magistrate in lieu of making an order setting aside the information if, in the court's opinion, the receipt of further testimony at a reconvened preliminary hearing would avoid the necessity of refiling a complaint and initiating a new prosecution.

Defense counsel objected to the suggested remanding procedure and requested a ruling on the motion to set aside the information pointing out that the People had filed nothing in opposition to and otherwise had not opposed the motion. The court ruled: 'Your motion for the ruling on 995 will be denied. The motion of the District Attorney to remand is over your objection and is granted.' ²

Petitioner relies on sections 995 and 997 in support of his contention that the respondent court could only grant or deny his motion to set aside the information. Section 995 provides, inter alia, that the information 'must be set aside' when a defendant had not been committed upon reasonable or probable cause, and section 997 provides, inter alia, that the motion 'must be heard at the time it is made, unless for cause the court postpones the hearing to another time.'

We consider first the legal effect of the proceedings had on the motion to set aside the information. The record compels a conclusion that there was, in fact, no hearing on the motion as the court never addressed itself to the question whether petitioner had been committed upon reasonable or probable cause, ignoring the suggestion of one of the deputy prosecutors and petitioner's request for a ruling on the motion. The court expressly refused to consider a ruling on section 995 and addressed itself only to the question whether it could remand the matter, concluding that it had jurisdiction so to do. Petitioner was thus afforded no opportunity to present argument on either the facts or the law going to the merits of the motion to set aside the information. But even if we deem petitioner to have been afforded a 'hearing' on the motion, that in itself did not satisfy the requirements of law.

The law is well settled that a trial court is under a duty to hear and determine the merits of all matters properly before it which are within its jurisdiction and that mandate may be used to compel the performance of this duty.' (Robinson v. Superior Court (1950) 35 Cal.2d 379, 383, 218 P.2d 10, 13.) 'If the court has jurisdiction of a case the parties are entitled to something more than a hearing on the merits--they are entitled to a decision thereon. See Cahill v. Superior Court, 145 Cal. 42, 78 P. 467. One of the fundamental aims of the law is to secure to a litigant a judgment on the merits of a matter properly brought before the court, and one of the ancient offices of the writ of mandate was to compel a court to hear and decide the merits of a matter within its jurisdiction.' (Id., at p. 385, 218 P.2d at p. 15.)

It thus appears that a motion pursuant to section 995 being properly before the court and no challenge being made to the court's jurisdiction to act thereon, it was the duty of respondent to hear and determine the motion on its merits. ³ Its failure to do so entitles petitioner to the extraordinary relief he seeks in the absence of legal justification for the failure.

The People contend that justification for the remand order, in lieu of a determination on the merits, is to be found in the controlling statutes and pertinent case law. The People particularly rely on the provisions of sections 997 and 998 insofar as they deal with procedures to be followed After the granting of a motion to set aside an information. Section 997 provides that a defendant shall be discharged from custody and bail exonerated unless the court 'directs that the case be resubmitted to the same or another grand jury, or that an information be filed by the district attorney. . . .' ⁴ Section 998 provides that on a directed resubmission the defendant, if in custody, is to remain in custody unless admitted to bail or, if already admitted to bail, the bail is answerable to the defendant's appearance on 'a new indictment or information,' and that unless such 'new indictment is found or information filed' within a specified time the defendant is to be discharged, his bail exonerated and money on deposit refunded as provided in section 997.

The People argue that sections 997 and 998 thus provide a short procedure for reinstituting a prosecution after the granting of a motion to set aside an information or indictment, in cases when it appears to the trial court that an information or indictment can be properly prosecuted against a defendant. Such procedure would circumvent the longer route or rearresting a discharged defendant, refiling the case and beginning prosecution anew. (§ 999; People v. Uhlemann (1973) 9 Cal.3d 662, 666, 108 Cal.Rptr. 657, 511 P.2d 609; People v. Mason (1968) 259 Cal.App.2d 30, 38--39, 66 Cal.Rptr. 601.)

The short answer to the People's contention is simply that the trial court did not purport to act, and in fact did not act in compliance with the provisions of sections 997 and 998. Those procedures are applicable only when a motion to set aside an information or indictment has been granted, and respondent in the case at bench adamantly refused to consider the motion on the merits. The remand was for the purpose of affording the People an opportunity to bolster the record so that probable cause for commitment might be more clearly demonstrated, thus preserving the challenged information. ⁵ Sections 997 and 998 clearly contemplate a resubmission only for consideration of a 'new' indictment or information.

In an attempt to extricate themselves from the consequences of respondent's refusal to act on the motion, the People now argue that by 'remanding the cause . . . (the respondent) court divested itself of jurisdiction and necessarily voided the previously filed information. . . . After completion of the proceedings on remand . . ., a second information would have to be filed. . . .' ⁶ In People v. Norman (1923) 62 Cal.App. 219, 221, 216 P. 402, it was suggested that an order remanding a cause on a motion to set aside an information was also an implicit granting of the motion, as such...