Mulkey v. Superior Court In and For Ventura County

• Decision Date: 02 October 1963
• Citation: 34 Cal.Rptr. 121,220 Cal.App.2d 817
• Parties: Delbert Arthur MULKEY, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF VENTURA, Respondent; The PEOPLE of the State of California, Real Party in Interest. Civ. 27632.
• Court: California Court of Appeals Court of Appeals

Page 121

34 Cal.Rptr. 121

220 Cal.App.2d 817

Delbert Arthur MULKEY, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF VENTURA, Respondent The PEOPLE of the State of California, Real Party in Interest.

Civ. 27632.

District Court of Appeal, Second District, Division 2, California.

Oct. 2, 1963.

Hearing Denied Nov. 27, 1963.

Andrew J. Marsh, Oxnard, George N. Dyer, Jr., Ventura, for petitioner.

Woodruff J. Deem, Dist. Atty., Edwin M. Osborne, Chief Crim. Deputy Dist. Atty., Robert M. Stone, Deputy Dist. Atty., Ventura County, for respondent.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., for real party in interest.

ASHBURN, Justice.

Petitioner Delbert Arthur Mulkey seeks prohibition commanding respondent superior court to desist and refrain from further proceedings upon counts II, III and IV of an information charging him with violations of § 470, Penal Code, in that he did 'forge, utter or pass' four certain checks with intent to defraud.

The prosecution was commenced through filing of a complaint in the municipal court of Ventura Judicial District, County of Ventura, charing petitioner with five separate violations of § 470 of the California Penal Code, forgery and uttering a forged instrument. At the preliminary hearing the district attorney introduced into evidence four checks which had been forged, and called witnesses from the business establishments at which the forged checks had been passed. In each case the check was made out to Delbert Mulkey as payee, and three of the checks were endorsed in his name, but in only one instance was a witness able to remember the appellant as the person who had actually passed the check in question. Clarence Mulkey, brother of the appellant and his former employer, testified that the checks had been taken without his permission from a check book in his office. An expert witness called by the prosecution testified that in his opinion the face of the checks was not made out by the appellant but that the endorsements were undoubtedly his. Because of the lack of identification of the person or persons who passed three of the checks and because defendant had not forged the face of the checks, the magistrate determined that there was not sufficient cause to believe that Delbert Mulkey was guilty of counts II, III and IV, and held him to answer upon count I only.

The District Attorney filed an information in the respondent Superior Court accusing the petitioner of four violations of § 470 of the Penal Code. Count I alleged the same offense as the first count of the complaint below and counts II, III and IV of the information alleged the same violations which were alleged in counts II, III and IV of the complaint upon which the magistrate refused to commit the appellant because of lack of probable cause. This proceeding, as above stated, is for a Writ of Prohibition commanding the respondent Superior Court to refrain from any further proceedings on counts II, III and IV of the information.

Section 739 of the Penal Code provides that, '[w]hen a defendant has been examined and committed, as provided in Section 872, it shall be the duty of the district attorney of the county in which the offense is triable to file in the superior court of that county within 15 days after the commitment, an information against the defendant which may charge the defendant with either the offense or offenses named in the order of commitment or any offense or offenses shown by the evidence taken before the magistrate to have been committed. * * *' (Emphasis added.) Taken in its broadest sense this section could be interpreted to mean that the district attorney may charge a defendant with any offense shown by the evidence at the preliminary examination to have been committed. This section cannot be read in a vacuum, but only in connection with Article I, section 8 of the California Constitution, which provides: 'Offenses heretofore required to be prosecuted by indictment shall be prosecuted by information, after examination and commitment by a magistrate, or by indictment, with or without such examination and commitment, as may be prescribed by law.' (Emphasis added.) Plainly this constitutional protection means that a defendant can be proceeded against by information only after there has been a preliminary examination and commitment order by a magistrate, but it does not mean that the district attorney must conform to the crimes designated by the magistrate in his commitment order. The question is how much deviation from the order is permissible.

In the leading case of People v. Bird, 212 Cal. 632, 636-639, 300 P. 23, the court held that a statute permitting the district attorney to prosecute a defendant for crimes shown by the evidence taken before the magistrate but not charged in the commitment order, did not violate section 8, article I of the Constitution. In that case the magistrate had bound the defendant over for manslaughter and the district attorney filed an information charging murder. The court affirmed the conviction, saying: 'The latter is included in the former and is one or the other, depending on the facts and circumstances attendant upon the killing. One transaction only is involved. Such is the situation in the present case.' (Emphasis added.) (Pp. 644-645 of 212 Cal., p. 28 of 300 P.)

In People v. Wyatt, 121 Cal.App. 180, 8 P.2d 901, the district court went beyond the scope of People v. Bird, and held that the district attorney could charge offenses unrelated and arising out of a different transaction from those for which the defendant was committed. The defendant was committed for three counts of grand theft and the information charged the three counts plus an additional five other counts of grand theft. Defendant was convicted of the seventh count, and the court said: 'It is true that the crime here in question did not, as did that in People v. Bird, supra, arise out of the same transaction as those charged in the complaint or set forth in the commitment. It consisted of one of a series of alleged like offenses during a period of about two years, and was shown at the preliminary examination for the purpose of showing system and intent.' (P. 185 of 121 Cal.App., p. 903 of 8 P.2d.) This holding was subsequently overruled in Parks v. Superior Court, 38 Cal.2d 609, 613, 241 P.2d 521, 523, where the court discussed People v. Wyatt, supra, and said that '[t]he transaction involved was one of several concerning which there was evidence at the preliminary hearing to show a common scheme or plan for the commission of a series of similar transactions within a period of two years. But there is nothing in the opinion to show that these transactions were in any way related or connected. Therefore language in that opinion which may be deemed inconsistent with the views herein expressed is disapproved.' (Emphasis added.) The court summarized the effect of People v. Bird, supra, 212 Cal. 632, 300 P. 23, and concluded that '[t]he court stated or plainly implied * * * that an information would be contrary to the constitution if it designated a crime or crimes unrelated to or unconnected with the transaction which was the basis for the commitment order. [Emphasis added.]

'The holding of the Bird case has been followed or applied in other cases in this court and in the district courts of appeal. (Citations).' (P. 612 of 38 Cal.2d, p. 523 of 241 P.2d.)

Thus the presently prevailing test laid down by the Supreme Court to determine validity of additional charges in the information is whether there is some 'transactional' relationship which relates or connects the added charges and the crimes listed in the commitment order. (People v. Evans, 39 Cal.2d 242, 249, 246 P.2d 636; Parks v. Superior Court, supra, 38 Cal.2d 609, 612, 241 P.2d 521; People v. Bird, supra, 212 Cal. 632, 645, 300 P. 23.) See also, People v. Kellin, 209 Cal.App.2d 574, 576, 25 Cal.Rptr. 925; People v. Warren, 163 Cal.App.2d 136, 141, 328 P.2d 858; People v. Bowman, 156 Cal.App.2d 784, 802, 320 P.2d 70; People v. Dean, 158 Cal.App.2d 572, 575, 322 P.2d 929; People v. Azevedo, 218 A.C.A. 507, 513, 32 Cal.Rptr. 748; People v. Horton, 191 Cal.App.2d 592, 597, 13 Cal.Rptr. 33. The court in People v. Johnson, 163 Cal.App.2d 58, 61, 328 P.2d 809, 811, quotes People v. Branch, 119 Cal.App.2d 490, 495-496, 260 P.2d 27, as follows: "Under the rule of this section, as interpreted by the Supreme Court, a single criminal act, whether it gives rise to included offenses or not, can only be punished once. By this section, it is indispensable in order to impose separate punishments that there be evidence of separate and divisible acts that are not incidental to each other. In determining this question the courts have refused to dissect the evidence minutely in an attempt to find separate offenses, but, on the contrary, have held that a broad transactional approach should be made." In People v. Warren, supra, 163 Cal.App.2d 136, 141, 328 P.2d 858, 861, the court held that '[i]t would appear that the only requirement is that the additional charge filed by the district attorney arises out of the same transaction as the one for which the accused is held to answer.'

Although the magistrate specifically dismisses certain counts charged against the defendant in the preliminary hearing, the district attorney may subsequently add them to the information if related to or connected with the crime or crimes for which the defendant is committed by the magistrate. (Parks v. Superior Court, supra, 38 Cal.2d 609, 241 P.2d 521; People v. Horton, supra, 191 Cal.App.2d 592, 13 Cal.Rptr. 33; People v. Warren, supra, 163 Cal.App.2d 136, 328 P.2d 858; People v. Dean, supra, 158 Cal.App.2d 572, 322 P.2d 929; People v. Bowman, supra, 156 Cal.App.2d 784, 320 P.2d 70.) In Parks the court said the district attorney may include 'a related offense although the magistrate concluded impliedly or otherwise...