Andrus v. Municipal Court

• Citation: 192 Cal.Rptr. 341,143 Cal.App.3d 1041
• Court: California Court of Appeals
• Decision Date: 17 June 1983
• Parties: Larry Ronald ANDRUS, Petitioner & Appellant, v. MUNICIPAL COURT OF the WEST ORANGE COUNTY JUDICIAL DISTRICT, Respondent, PEOPLE of the State of California, Cecil Hicks, District Attorney, County of Orange, Real Party in Interest. Civ. 30066.

Page 341

192 Cal.Rptr. 341

143 Cal.App.3d 1041

Larry Ronald ANDRUS, Petitioner & Appellant, v. MUNICIPAL COURT OF the WEST ORANGE COUNTY JUDICIAL DISTRICT, Respondent PEOPLE of the State of California, Cecil Hicks, District Attorney, County of Orange, Real Party in Interest.

Civ. 30066.

Court of Appeal, Fourth District, Division 3, California.

June 17, 1983.

Hearing Denied Aug. 18, 1983.

[143 Cal.App.3d 1044] Cohen, Stokke & Davis and Allan H. Stokke and Robinson D. Harley, Jr., Santa Ana, for petitioner & appellant.

Cecil Hicks, Dist. Atty., Michael R. Capizzi, William W. Bedsworth, Santa Ana, and J. Philip Ashey for real party in interest.

OPINION

CROSBY, Associate Justice.

Larry Andrus is charged with misdemeanor driving under the influence of alcohol (Veh.Code § 23152(a)). The municipal court denied his pretrial motion for a court reporter or other recording device, and the superior court declined his writ petition because he did not claim indigency. Andrus filed a timely notice of appeal on June 22, 1982.

We consider two questions: (1) Does repeal of the statutory right to appeal from an extraordinary writ proceeding in the superior court brought to challenge an action of the municipal court apply to appeals pending on the effective date of the legislation? (2) Is a defendant in a misdemeanor proceeding entitled to a state provided court reporter or other means of securing a verbatim record on request, in the absence of proof of indigency?

I

When the notice of appeal was filed, Andrus was unquestionably entitled to appeal as a matter of statutory right. However, Code of Civil Procedure section 904.1, the source of that right, was amended effective January 1, 1983. It now reads, "An appeal may be taken from a superior court in the following cases: (a) From a judgment, except ... (4) a judgment granting or denying a petition for issuance of a writ of mandamus or prohibition directed to a municipal court or a justice court or the judge or judges thereof which relates to a matter pending in the municipal or justice court. However, an appellate court may, in its discretion, review a judgment granting or denying a petition for issuance of a writ of mandamus or prohibition upon petition for an extraordinary writ." At our request, the parties in this and other similar cases have filed supplemental briefs concerning the effect, if any, of the amendment on pending matters. We have concluded the statute should be applied to unresolved appeals filed before January 1, 1983, and that each must be treated as a petition for extraordinary relief. (People v. Cimarusti (1978) 81 Cal.App.3d 314, 320-321, 146 Cal.Rptr. 421; Branham v. State Farm Mutual Automobile Insurance Company (1975) 48 Cal.App.3d 27, 32-33, 121 Cal.Rptr. 304; U.S. Financial v. Sullivan (1974) 37 Cal.App.3d 5, 11-12, 112 Cal.Rptr. 18; Clovis Ready Mix Co. v. Aetna Freight Lines (1972) 25 Cal.App.3d 276, 281-282, 101 Cal.Rptr. 820.)

De Genova v. State Board of Education (1962) 57 Cal.2d 167, 174, 18 Cal.Rptr. 369, 367 P.2d 865 states the general rule: "no statute is to be given retroactive effect unless the Legislature has expressly so declared...." (See also Balen v. Peralta Junior College Dist. (1974) 11 Cal.3d 821, 828, 114 Cal.Rptr. 589, 523 P.2d 629.) Although legislative enactments are presumed to operate prospectively, this presumption is rebuttable and must yield to the overriding principle that the intent of the Legislature is to be given primary effect. ¹ (In re Marriage of Bouquet (1976) 16 Cal.3d 583, 587, 128 Cal.Rptr. 427, 546 P.2d 1371; State Comp. Ins. Fund v. Workers' Comp. Appeals Bd. (1977) 71 Cal.App.3d 133, 140, 139 Cal.Rptr. 410; People v. White (1978) 77 Cal.App.3d Supp. 17, 21, 144 Cal.Rptr. 128.) Did the Legislature intend the amendment to section 904.1 to operate retroactively? We believe it did.

Although the language of the amendment does not expressly provide for retrospective application, that factor is not dispositive where the Legislature's intent is nonetheless clear. (In re Estrada (1965) 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948.) In Estrada the Supreme Court disapproved a long line of authority and gave retroactive effect to an amendment of the Penal Code, despite the lack of legislative direction concerning pending cases and the presumption against retroactive application. ² The court explained the "rule of construction [against retroactivity], however, is not a straightjacket. Where the Legislature has not set forth in so many words what it intended, the rule of construction should not be followed blindly in complete disregard of factors that may give a clue to the legislative intent. It [the presumption against retroactivity] is to be applied only after, considering all pertinent factors, it is determined that it is impossible to ascertain the legislative intent." (Id., at p. 746, 48 Cal.Rptr. 172, 408 P.2d 948.) In light of Estrada, "we must address 'all pertinent factors' when attempting to divine the legislative purpose." (In re Marriage of Bouquet, supra, 16 Cal.3d 583, 587, 128 Cal.Rptr. 427, 546 P.2d 1371.) The statute itself is the prime indicator of legislative intent; but "other considerations include the context and object of the legislation, the evil sought to be remedied, and the public policy sought to be implemented." (Leonard v. Department of Motor Vehicles (1983) 143 Cal.App.3d 549, 192 Cal.Rptr. 33; Alford v. Pierno (1972) 27 Cal.App.3d 682, 688, 104 Cal.Rptr. 110.)

The obvious goal of the amendment of section 904.1 suggests the logic of retroactive application. ³ The amendment brings the statutory appellate scheme into conformity with the hierarchical framework of the judicial branch set forth in our Constitution. It was long overdue. There is seldom a good reason to deal with relatively minor municipal and justice court cases in the Court of Appeal before trial. A criminal defendant has an absolute right to seek post-trial review in the appellate department of the superior court, and bond on appeal cannot be denied in a misdemeanor case (Pen.Code, § 1272). When there is sufficient cause to review an issue before trial, the writ procedure of section 904.1, subdivision (a)(4) is available. ⁴ Before the change, any trivial issue could be litigated successively by a determined litigant at least four times: once in the municipal court, once in the superior court, once in this court and once in the appellate department of the superior court. The proceeding in this court alone entails the preparation of the record, briefs by the parties, oral argument and a written opinion--and endless delay. (Burrus v. Municipal Court (1973) 36 Cal.App.3d 233, 238, 111 Cal.Rptr. 539.)

An accused in the superior court has never enjoyed a review of a pretrial ruling as a matter of right, however. The Court of Appeal did not fail to commend this absurdity to the Legislature's attention: "It is an anomaly that appeal by right lies from a discretionary decision of the superior court while a decision on the merits on the same point by the appellate department of the superior court is not appealable to us by right. Equally it makes no sense that a superior court litigant cannot appeal to us from a pretrial ruling on the same point of law merely because the case arose from a superior court trial action. Is it not true that the superior court handles problems generally more serious in nature than do justice and municipal courts?" (Gilbert v. Municipal Court (1977) 73 Cal.App.3d 723, 733, 140 Cal.Rptr. 897; see also Conway v. Municipal Court (1980) 107 Cal.App.3d 1009, 1020, 166 Cal.Rptr. 246; Monica Theater v. Municipal Court (1970) 9 Cal.App.3d 1, 12, 88 Cal.Rptr. 71.)

Moreover, the municipal court is placed in an untenable situation when a misdemeanor is pending pretrial appeal in this court. It can stay the trial and await the outcome, potentially experiencing an intolerable delay, as here, of over a year; or it can proceed to trial and abet the appealing litigant in the possible creation of concurrent, parallel appeals on the same issue in the superior court appellate department and the Court of Appeal. Since Court of Appeal review of appellate department decisions is quite circumscribed, the municipal court could wind up with two contemporaneous and inconsistent rulings from higher courts on the same legal point in the same case. (Mendieta v. Municipal Court (1980) 109 Cal.App.3d 290, 293, 168 Cal.Rptr. 1.)

To deny retroactive application to the amendment of section 904.1 is to subscribe to the notion that the Legislature desired to postpone the demise of a procedural loophole which was inequitable to defendants accused of more serious offenses, placed unnecessray and redundant burdens on the appellate courts, and provided for concurrent and possibly inconsistent appellate review of the same issue. We find that proposition absurd. The Legislature must be presumed to act in light of existing judicial decisions. (Estate of McDill (1975) 14 Cal.3d 831, 839, 122 Cal.Rptr. 754, 537 P.2d 874.) There could be no good reason to differentiate between cases where the superior court ruled on a petition for extraordinary relief before rather than after January 1, 1983, so long as pending appeals are treated as writ petitions pursuant to the statutory change.

The district attorney argues, persuasively in our view, where a statutory procedural right or remedy is repealed, the repealer is effective on the date it is enacted in the absence of a savings clause. ⁵ Since the pretrial writ/appeal procedure was a purely statutory creature, we hold it expired, like most parasites, with the demise of its host. (Younger v. Superior Court (1978) 21 Cal.3d 102, 109, 145 Cal.Rptr. 674, 577 P.2d 1014; Governing Board v. Mann (1977) 18 Cal.3d 819, 829, 135 Cal.Rptr. 526, 558 P.2d 1.)

Finally, denial of a pretrial right to appeal can hardly be termed an ex post facto law: "The doctrine does not apply to trivial matters but...