Amos v. Superior Court In and For Los Angeles County

• Decision Date: 30 June 1960
• Citation: 6 Cal.Rptr. 252,182 Cal.App.2d 343
• Parties: Mollie AMOS, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR COUNTY OF LOS ANGELES, Respondent. Civ. 24617.
• Court: California Court of Appeals Court of Appeals

Page 252

6 Cal.Rptr. 252

182 Cal.App.2d 343

Mollie AMOS, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR COUNTY OF LOS ANGELES, Respondent.

Civ. 24617.

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

June 30, 1960.

Hearing Denied Aug. 24, 1960.

Thomas Higgins, Jr., Los Angeles, for petitioner.

William B. McKesson, Dist. Atty., Harry Wood and Harry B. Sondheim, Deputy Dist. Attys., Los Angeles, for respondent.

ASHBURN, Justice.

Petition for prohibition brought under § 999a, Penal Code, after motion to set aside an information pursuant to § 995, Penal Code, had been denied. The charge was bookmaking (§ 337a, subds. 1 and 2, Pen.Code) and the motion was absed upon the ground that defendant had not been legally committed by a magistrate. The problem presented is whether an attorney may act as a committing magistrate conducting a preliminary hearing in a criminal case after he has qualified pursuant to stipulation that he act in the particular proceeding as a judge pro tempore of a municipal court.

Petitioner, having been charged by complaint filed in the Municipal Court of the Inglewood Judicial District, was duly arraigned and preliminary hearing set for January 14, 1960, in said court. On that day petitioner, as defendant, appeared with her counsel and entered into a stipulation with the district attorney that Robert S. Antram, a member of the bar in good standing for over five years last past and also a general Municipal Court Commissioner of the Inglewood Municipal Court should become and act as judge pro tempore of said court and in that capacity conduct the preliminary examination of the defendant. Mr. Antram accepted said designation, his selection was approved by the presiding judge of said municipal court; he took the oath of office and conducted the hearing pursuant to said stipulation. At the conclusion of the hearing he held defendant to answer in the superior court.

In due course an information was filed in that court charging the same crime as was alleged in the municipal court complaint, defendant was arraigned and thereafter, appearing through counsel different from the one who had represented her upon the preliminary hearing, made the motion under § 995 alleging that 'before the filing of said Information the defendant had not been legally committed by a Magistrate.' In this court, as below, present counsel contends that the preliminary hearing was void because conducted by one who under the law could not attain the status of a magistrate. The major argument is that Mr. Antram, though legally qualified as a judge pro tempore of the municipal court to whom the particular hearing had been assigned, could not exercise the functions of a magistrate because that is a special statutory office whose duties are nonjudicial, one to which the constitutional provision for judges pro tempore does not apply.

Section 5 of article VI of the Constitution of the State provides in part: 'Upon stipulation of the parties litigant or their attorneys of record a cause in the superior court or in a municipal court may be tried by a judge pro tempore who must be a member of the bar sworn to try the cause, and who shall be empowered to act in such capacity in the cause tried before him until the final determination thereof. The selection of such judge pro tempore shall be subject to the approval and order of the court in which said cause is pending and shall also be subject to such regulations and orders as may be prescribed by the Judicial Council.'

Rule 31 of Rules for the Municipal Court prescribed by the Judicial Council, which implements the constitutional provision, is set forth in the margin. ¹ All of its requirements were complied with.

The first question requiring solution is whether a criminal proceeding is a 'cause' within the purview of the constitutional provision for pro tempore judges. We entertain no doubt that it is. Thurston v. Clark, 107 Cal. 285, 289, 40 P. 435, 437, says: 'A criminal case is an action, suit, or cause instituted to punish an infraction of the criminal laws and, with this object in view, it matters not in what form a statute may clothe it; it is still a criminal case * * *.' (Emphasis added.)

Quezada v. Superior Court, 171 Cal.App.2d 528, 530, 340 P.2d 1018, 1019, referring to the constitutional amendment which authorizes pro tempore judges, accurately states: 'Prior to the adoption of this amendment to section 5 of article VI of the Constitution the word 'cause' as used in the Constitution of this state had acquired the definite meaning of including every matter that could come before the court for decision. See In re Wells, 174 Cal. 467 at pages 471-472, 163 P. 657 at pages 658-659; In re Stevens, 197 Cal. 408 at pages 413-414, 241 P. 88 at page 90. The familiar rule of construction requires that there be given a similarly broad meaning to section 5 as had been given to it by the Supreme Court in the cases just cited in construing section 4 of article VI of the Constitution.' The decision dealt with a civil contempt and upheld the right to select and use a pro tempore judge notwithstanding the well-known criminal aspects of such a proceeding. See 171 Cal.App.2d at pages 529-530, 340 P.2d 1018.

In re Wells, 174 Cal. 467, 163 P. 657 and In re Stevens, 197 Cal. 408, 241 P. 88, dealt with the power of the Supreme Court to transfer a case from the District Court of Appeal to itself, which question turned upon the meaning of 'cause' as used in § 4 of article VI of the Constitution. Stevens, quoting the Wells opinion, 197 Cal. at page 414, 241 P. at page 90, emphasizes the quotation as follows: 'The familiar rule of construction requires that it be given a similarly broad meaning in the new provision, and to include every matter decided by a District Court of Appeal, and operating as a final decision or disposition thereof in that court. It is clear, therefore, that the power to transfer causes from the District Court of Appeal to the Supreme Court, either before or after judgment in the District Court of Appeal, was intended to have this all embracing application.'

A criminal prosecution quite commonly is referred to as a criminal cause and not without reason. Bouvier's Law Dictionary carries as one of its definitions of 'cause': 'Any question, civil or criminal, contested before a court of justice.' 1 Bouv. Law Dict., Rawles Third Revision, p. 436. 1 C.J.S. Actions § 1, page 951 states: 'The term [cause] is one of very broad and general application, and has been held applicable to every species of action, not only to civil actions but to criminal cases as well.' 22 C.J.S., which is devoted to the subject of criminal law has an entire division (§§ 149-158) entitled 'Transfer of Causes.' The Supreme Court in Blyew v. United States, 13 Wall. 581-591, 20 L.Ed. 638, states: 'But an indictment prosecuted by the government against an alleged criminal, is a cause in which none but the parties can have any concern, except what is common to all the members of the community.'

As above stated we entertain no doubt that the Constitution authorizes the employment of a pro tempore judge in criminal cases.

Our attention has been called to certain decisions which hold that the office of magistrate is statutory, ² that it does not pertain to the office of judge and that a justice or judge who sits as magistrate does not carry with him any of the implied or inherent powers of his judicial office. To an extent that proposition is sustained by People v. Cohen, 118 Cal. 74, 78, 50 P. 20; People v. Brite, 9 Cal.2d 666, 683, 72 P.2d 122; People v. Swain, 5 Cal.App. 421, 425, 90 P. 720. However, those cases must be read with consciousness that 'it is elementary that the language used in any opinion is to be understood in the light of the facts and the issue then before the court.' Eatwell v. Beck, 41 Cal.2d 128, 136, 257 P.2d 643, 648.

People v. Cohen, supra, 118 Cal. 74 at page 78, 50 P. 20, at page 21, holds that a superior court judge who conducts a preliminary hearing cannot have the court clerk swear the witnesses, saying: 'A superior judge, when sitting as a magistrate, possesses no other or greater powers than are possessed by any other officer exercising the functions of a magistrate. The justices of this court, judges of the superior courts, justices of the peace, and police magistrates in cities and towns, are each and all by the statute made magistrates. Pen.Code, § 808. The office is purely a statutory one, and the powers and duties of the functionary are solely those given by the statute; and those powers are precisely the same, whether exercised by virtue of one office, or that of another. The statute makes no sort of distinction between them. If a judge of a superior court, or a justice of this court, sees fit to assume the duties of a committing magistrate,--duties which are usually performed by others,--he has no greater authority as such magistrate than that possessed by any justice of the peace or police judge. People v. Crespi, 115 Cal. 50, 46 P. 863. He is not accompanied in the discharge of those functions by any of the general or implied powers, nor by those presumptions of regularity in his proceedings, which surround him when sitting as a judge of a court of record. As such magistrate, he is purely a creature of the statute.' This broad language spells only this, that a judge who sits as magistrate does not carry his court or his judicial attributes with him except to the extent that they inhere in the office of magistrate. The case does not hold that a magistrate cannot at any time exercise judicial functions.

People v. Brite, supra, 9 Cal.2d 666, 72 P.2d 122, decided that a judge who sits as magistrate is not required to affix a seal to a warrant of arrest.

People v. Swain, supra, 5 Cal.App. 421, 90 P. 720, points to a distinction which should not be ignored. A magistrate, since 1872, is merely 'an officer having...