Humphrey v. Appellate Div. Of Superior Ct.
| Decision Date | 22 August 2001 |
| Docket Number | No. B149998.,B149998. |
| Citation | 91 Cal.App.4th 948,111 Cal.Rptr.2d 213 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Eric HUMPHREY, Petitioner, v. The APPELLATE DIVISION OF THE SUPERIOR COURT of Los Angeles County, Respondent; The People, Real Party in Interest. |
Michael P. Judge, Public Defender, Victor Acevedo and John Hamilton Scott, Deputy Public Defenders, for Petitioner.
No appearance for Respondent.
Rockard J. Delgadillo, City Attorney, Debbie Lew, Assistant City Attorney, and Katharine H. MacKenzie, Deputy City Attorney, for Real Party In interest.
After the appellate division of the superior court (appellate division) denied petitioner Eric Humphrey's petition for writ of prohibition and certified its decision for publication, we transferred the matter to us pursuant to California Rules of Court, rule 62(a).1 Petitioner Eric Humphrey challenges the denial of his petition for writ of prohibition by the appellate division, as well as our transfer of the matter under rule 62(a).
We conclude that the transfer under rule 62(a) was improvident, deem the matter before us to be a proceeding in mandamus, and address the merits of Humphrey's challenges to the denial of his writ of prohibition by the appellate division. We further conclude that the appellate division erred in denying Humphrey's writ petition, and in certifying its decision for publication.
On November 13, 2000, a six-count misdemeanor complaint was filed against Humphrey, charging him, inter alia, with annoying or molesting a child under 18 years old (Pen.Code, § 647.6, subd. (a)),2 and sexual battery (§ 234.4, subd. (d)). The alleged victims were two 8-year-old female children.
On November 21, 2000, the People filed a motion pursuant to section 1524.1 for a search warrant to permit testing of Humphrey's blood for the HIV virus. Supporting the motion was a declaration from the children's mother, as well as various police and medical reports. Following a hearing, the trial court issued the search warrant on December 5, 2000.
On December 14, 2000, Humphrey filed his petition for writ of prohibition in the appellate division. The appellate division summarily denied the petition on December 22, 2000. On January 4, 2001, this court issued an alternative writ, directing the appellate division to decide the petition on its merits or to show cause. On February 1, 2001, the appellate division complied with our alternative writ by vacating its denial and initiating proceedings on the merits.
On April 11, 2001, the appellate division denied Humphrey's petition in a written decision that it certified for publication. Subsequently, the appellate division denied Humphrey's motion for rehearing, and his request that it certify the case for transfer to this court pursuant to rule 62(a). We ordered that the case be transferred to this court on May 30, 2001.
In addition, Humphrey filed a petition for writ of mandate on May 24, 2001, (Humphrey v. Superior Court, B150307). On June 6, 2001, we ordered that action would be deferred on this petition until the case transferred to us had been determined, and we stayed any disclosure of the results of the blood test.
Aside from challenging the appellate division's denial of his petition for writ of prohibition, Humphrey contends that rule 62(a) does not authorize this court to order transfer of the matter on its own motion. The issue presented is apparently one of first impression. Because this issue concerns our jurisdiction over this matter, we address it at the threshold.
Rule 62(a) provides: "A Court of Appeal may order a case transferred to it for hearing and decision when the superior court certifies or the Court of Appeal on its own motion determines from an opinion of the appellate department published or to be published in Advanced California Appellate Reports that such transfer appears necessary to secure uniformity of decision or to settle important questions of law." Under rule 61, "unless the context or subject matter otherwise requires," the term "case" in rule 61(a) means "any case on appeal within the original jurisdiction of a municipal or justice court."
Rule 100 further states that all references in the California Rules of Court to "appellate department" mean "appellate division," and that "[r]ules that apply to an appeal taken from a municipal court judgment to the appellate division of the superior court apply to an appeal taken from a unified superior court (trial court) judgment to the appellate division of the unified superior court (reviewing court)." The adoption of rule 100 was among many changes to California law made in 1998 to facilitate the unification of municipal and superior courts. (Snukal v. Flightways Manufacturing, Inc. (2000) 23 Cal.4th 754, 763, fn. 2, 98 Cal.Rptr.2d 1, 3 P.3d 286.)
Rule 62 and other rules implement Code of Civil Procedure section 911 (Snukal v. Flightways Manufacturing, Inc., supra, 23 Cal.4th at p. 762, 98 Cal.Rptr.2d 1, 3 P.3d 286), which provides in pertinent part: "A court of appeal may order any case on appeal to a superior court in its district transferred to it for hearing and decision as provided by rules of the Judicial Council when the superior court certifies, or the court of appeal determines, that the transfer appears necessary to secure uniformity of decision or to settle important questions of law." (Italics added.) The Penal Code, which adopts the California Rules of Court in criminal matters (§ 1247k), contains an essentially identical provision in section 1471.
As our Supreme Court recently explained in Snukal v. Flightways Manufacturing, Inc., supra, 23 Cal.4th at page 763, 98 Cal.Rptr.2d 1, 3 P.3d 286, our appellate jurisdiction under rule 61(a) is controlled by Code of Civil Procedure section 911. Accordingly, the key issue presented is whether section 1471 and Code of Civil Procedure section 911 permit a Court of Appeal to transfer a writ proceeding originating within the jurisdiction of the appellate division. We begin by observing that historically, California constitutional and statutory law has distinguished the appellate jurisdiction of the appellate division from its original jurisdiction.
The original statutes regarding appellate jurisdiction limited the then denominated appellate department to appeals from the municipal court. (2 Witkin, Cal. Procedure (4th ed. 1996) Courts, § 344, p. 413.) The appellate jurisdiction of the appellate division is now defined in Code of Civil Procedure section 77, which provides that (Code Civ. Proa, § 77, subd. (e), italics added.)
As Witkin indicates, prior to recent statutory and constitutional changes, the then denominated appellate department, "as such, ha[d] only appellate functions; the statutes conferred] no original jurisdiction . . . ." (2 Witkin, Cal. Procedure, supra, Courts, § 346, p. 415; 2 Witkin, Cal. Procedure (2001 Supp.) Courts, § 346, p. 88.) Thus, in Thomasian v. Superior Court (1953) 122 Cal.App.2d 322, 328, 265 P.2d 165, the municipal court granted a request to transfer a case to the superior court. The appellate department concluded that this order was not appealable, and it issued a writ of review annulling the order. (Ibid.) Applying then current law, the court in Thomasian determined that the writ was void because the appellate department had acted in excess of its jurisdiction in granting it. (Id. at p. 333, 265 P.2d 165.) The Thomasian court reasoned that the petition seeking the writ had invoked the original jurisdiction of the superior court, yet the appellate department had treated it "as an appellate department matter in the same full sense as if it were an appeal from the municipal court. . . ." (Ibid.)
However, in 1998, article VI, section 10 of the California Constitution was amended to provide that "[t]he appellate division of the superior court has original jurisdiction in proceedings for extraordinary relief in the nature of mandamus, certiorari, and prohibition directed to the superior court in causes subject to its appellate jurisdiction." This change was among the modifications to California law under Proposition 220, approved in 1998, and intended to facilitate unification of the municipal and superior courts. (See Historical Notes, 2 West's Ann. Const. (2001 supp.) foll. art. VI, § 10, p. 12; Snukal v. Flightways Manufacturing Inc., supra, 23 Cal.4th at pp. 763, fn. 2, 98 Cal.Rptr.2d 1, 3 P.3d 286.)
In view of the clear statutory distinction between the appellate division's appellate and original jurisdiction, Code of Civil Procedure section 911 and section 1471, together with the rules that implement these sections, cannot be interpreted to confer authorization upon the courts of appeal to transfer cases arising from the appellate division's original jurisdiction. Section 1417 and Code of Civil Procedure section 911, by their plain language, limit transfers to cases on appeal before the appellate division. Because the rules of court cannot conflict with governing statutes (People v. Hall (1994) 8 Cal.4th 950, 960, 35 Cal.Rptr.2d 432, 883 P.2d 974), rule 62(a) authorizes transfers of cases only within the appellate division's appellate jurisdiction.
This conclusion finds additional support in Snukal v. Flightways Manufacturing, Inc., supra, 23 Cal.4th 754, 98 Cal. Rptr.2d 1, 3 P.3d 286. In Snukal, our Supreme Court concluded that under Code of Civil Procedure section 911 and its implementing rules, courts of appeal that transfer cases arising on appeal to the appellate division lack authority to resolve selected issues and then remand the cases to the appellate division for resolution of remaining issues. (23...
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