Dudley v. Superior Court

• Decision Date: 24 January 1974
• Citation: 36 Cal.App.3d 977,111 Cal.Rptr. 797
• Court: California Court of Appeals Court of Appeals
• Parties: Davis DUDLEY, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent; The PEOPLE, Real Party in Interest. Civ. 42978.

Page 797

111 Cal.Rptr. 797

36 Cal.App.3d 977

Davis DUDLEY, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent The PEOPLE, Real Party in Interest.

Civ. 42978.

Court of Appeal, Second District, Division 4, California.

Jan. 24, 1974.

Rehearing Denied Feb. 5, 1974.

Hearing Denied March 20, 1974.

Richard S. Buckley, Public Defender, Harold E. Shabo, Dennis A. Fischer, Bernard J. Kamins and Michael Rothschild, Deputy Public Defenders, for petitioner.

Joseph P. Busch, Dist. Atty. Harry B. Sondheim, Acting Head, Appellate Division, Eugene D. Tavris, Deputy Dist. Atty., for real party in interest.

No appearance for respondent Superior Court.

FILES, Presiding Justice.

A complaint filed by the district attorney charged petitioner with murder (Pen.Code, § 187.) After a preliminary examination the magistrate expressed his opinion that no malice had been shown, and he held petitioner to answer for the crime of manslaughter (Pen.Code, § 192). The district attorney, purporting to act under the authority of Penal Code section 739, ¹ filed an information in the superior court charging murder. Petitioner's motion in the superior court to dismiss this information was denied. Petitioner now asks this court to order the superior court to require that the information be amended to charge manslaughter instead of murder.

The decision to be made here depends upon whether the ruling of the magistrate precluded the prosecutor from filing an information charging murder, under the principles discussed in Jones v. Superior Court (1971) 4 Cal.3d 660, 94 Cal.Rptr. 289, 483 P.2d 1241.

On July 9, 1973, at about 8:15 p.m., the decedent, James Webber, who was a man 61 years of age, and three other men, were sitting on a bench in the alley behind the Union Rescue Mission in downtown Los Angeles. Another group of men, including defendant, passed by. Defendant asked Webber what he was looking at. Webber 'said he was not looking at nothin'.' Defendant then kicked Webber, or tried to. Webber stood up with his fists clenched as if to fight, but did not swing. Defendant then kicked Webber in the stomach or testicles. Webber started towards the door of the mission but fell or was pushed to the ground. After that, defendant kicked Webber several times in the face and in the ribs. Defendant and his companions ran away when a police officer appeared.

The autopsy showed that Webber died of a brain hemorrhage 'due to or as a consequence of traumatic injuries of the head and face.' The medical examiner testified that the hemorrhage came from an aneurysm which had existed for many years but which burst with the elevation in blood pressure caused by the attack. The blows struck by defendant would not have been fatal but for the bursting of the aneurysm.

The magistrate made a number of comments about the evidence before ruling. Among other things, he said:

'THE COURT: . . . THE DEFENDANT in this case must foresee that the individual he picks is suffering from a pre-existing condition, and if he gets in a fight with him, he might die.

'That is why I said in the beginning, and what I meant to say, in trying to guide Counsel during the course of the evidence that I did not think this was murder. I said that it was homicide. I meant murder because the murder case requires showing malice. I think it requires a great deal more proximate cause and the actual cause of death when you are dealing with a pre-existing condition.

'. . ..e.

'There is no question that the evidence does not (sic) disclose combative situation, such as was described in this case by the witnesses, and by the autopsy surgeon's findings, which did not disclose any evidence of abandoned malignant heart.

'There has to be expressed malice or implied malice for it to be murder. There is no evidence there from which the Court can conclude, either expressed or implied malice existed in this case.

'. . ..as

'I think the man should be charged with involuntary manslaughter. I think it is a one-sided fight. I think he took advantage when Mr. Webber was down, but I do not believe that those circumstances in the light of the autopsy surgeon's findings that they were moderate external injuries and do not show abandon and malignant heart.'

The petitioner does not attack the information upon the ground that the evidence was insufficient to support a prosecution for murder if the magistrate had held him to answer for that offense. ² Petitioner's contention here is solely that the magistrate's finding protects him against such a charge in this case. We accept petitioner's implied concession that the evidence was not insufficient as a matter of law, and proceed to an analysis of the legal issue raised by the petition here.

As a starting point, we observe that in People v. Bird (1931) 212 Cal. 632, 300 P. 23, the defendant was held to answer for manslaughter and brought to trial on a charge of murder. He was convicted of manslaughter, but on appeal contended that the information was void because the district attorney had no authority to charge murder. The Supreme Court affirmed the judgment and, in its opinion, upheld the power of the prosecutor to charge any offense 'shown by the evidence taken before the magistrate to have been committed,' pursuant to former Penal Code section 809 the predecessor of the present section 739. ³

In Jones v. Superior Court, Supra, 4 Cal.3d 660, 94 Cal.Rptr. 289, 483 P.2d 1241, the defendant had been charged initially with rape (Pen.Code, § 261), oral copulation (Pen.Code, § 288a) and sodomy (Pen.Code, § 286). At the close of the preliminary examination, the magistrate stated his opinion that the victim had not told the truth in her testimony. The magistrate found that neither the sodomy nor the oral copulation had taken place, and that no force had been used. Since it appeared the victim was under 18 years of age, the defendant was held to answer only for 'statutory' rape (former Pen.Code, § 261, subd. 1, now § 261.5). The district attorney filed an information charging all of the offenses charged in the original complaint. The testimony of the victim, if believed, would have supported a conviction of all of these offenses.

The Supreme Court issued a writ of prohibition restraining proceedings on that information. In essence, the Court held that the factual determinations made by the magistrate, when he found that the story of the complaining witness lacked credibility, precluded further prosecution for those offenses in that proceeding.

Our difficulty in finding clear guidance from the Jones opinion arises in part because of the unusually simple and clear-cut factual issue in that case, and the unusually specific finding made by the magistrate there. The Jones case depended upon the credibility of a single witness. The magistrate based his ruling upon the express finding that this witness did not tell the truth as to certain critical matters. In the case at bench, the magistrate's remarks leave considerable room for interpretation, as is often true of the impromptu statements of lawyers and judges. Some portions suggest that the magistrate believed that a stronger showing of causation was required for murder than for manslaughter, or that the offense would not be murder where the assailant was unaware of the victim's pre-existing condition. Another portion might be read as expressing the view that the evidence was insufficient as a matter of law to support a finding of malice.

The critical distinction between murder and manslaughter is that malice is an element only of the former (see Pen.Code, §§ 187, 192.) Malice is a mental state which in this case can only be determined circumstantially. From this record a finding of malice, or the lack thereof, can be arrived at only by drawing inferences from facts which are, for the most part, uncontradicted. Upon the record here, we cannot assume that the magistrate lacked understanding of the distinction between the two kinds of homicide. The view of the record most favorable to the petitioner is that the magistrate drew inferences from the proven facts, which indicated to his mind that there was no malice, even though these same evidentiary facts would have supported a finding of malice in the mind of another reasonable person.

Having thus identified the basis of the magistrate's ruling, we must determine whether it is the kind of factfinding which binds the district attorney, as in Jones.

In examining this question, we must consider the function of the magistrate who conducts the preliminary examinations of a felony charge. It has long been established that the purpose of that examination is to determine whether there is sufficient or probable cause to hold the defendant for trial. That subject has been recently discussed by the Supreme Court in People v. Uhlemann (1973) 9 Cal.3d 662, 108 Cal.Rptr. 657, 511 P.2d 609, wherein the Court decided that the magistrate's order dismissing a felony complaint would not bar another prosecution for the same offense. That conclusion was reached upon an examination of the special function served by the magistrate in the adjudicatory process. The Court said:

'Defendant's assumption, that the magistrate's dismissal constituted a valid determination on the merits of the charges against him, is based upon the premise that the magistrate had authority or jurisdiction to make such a determination. To the contrary, the magistrate's role is limited by statute to determining whether or not there is 'sufficient cause' to believe defendant guilty of a public offense. (See Pen.Code, §§ 871, 872.) The term 'sufficient cause' is generally equivalent to 'reasonable and probable cause,' that is, such a state of facts as would lead a man of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion of the guilt of the accused. (Williams v. Superior Court, 71 Cal.2d 1144, 1147, (80 Cal.Rptr. 747, 81 Cal.Rptr....