Jones v. Superior Court

Decision Date27 April 1971
CourtCalifornia Supreme Court
Parties, 483 P.2d 1241 Charles Edward JONES, Petitioner, v. The SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; The PEOPLE, Real Party in Interest. Hal Joseph BEHRMAN, Petitioner, v. The SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; The PEOPLE, Real Party in Interest. L.A. 29840, 29841.

Charles E. Ward, Public Defender, William R. McVay, Deputy Public Defender, and John F. Ingro, San Bernardino, for petitioners.

No appearance for respondent.

Lowell E. Lathrop, Dist. Atty., Joseph A. Burns and John Arden, Deputy Dist. Attys., for real party in interest.

BURKE, Justice.

Petitioners seek prohibition to prevent the superior court from taking further proceedings on an information filed against them. We have concluded that prohibition should issue for the reason that the information charges petitioners with offenses not specified by the committing magistrate nor shown by the evidence to have occurred.

On June 24, 1970, petitioners were charged by complaint with violations of Penal Code, section 261, subdivision 4 1 (rape), section 288a (oral copulation, two counts), and section 286 (sodomy). The complaint alleged that all counts occurred on June 14, 1970, and involved Kathryn H. as the victim. Following petitioners' arrest and arraignment, a preliminary hearing was held in municipal court and evidence was introduced concerning these charges. The sole witness for the People was Miss H., who testified that she was 17 years old, and that petitioners drove her to an isolated area in San Bernardino County where she was handcuffed and where, against her will and for a period of three hours, acts of sexual intercourse, oral copulation and sodomy occurred. Miss H. also testified that petitioners were armed and that they displayed and discharged their firearms while these offenses took place.

Miss H. admitted that she had previously known petitioners, that she asked them to drive her to her mother's house, that during the alleged incident she agreed to dinner dates with them, and that afterwards she drove petitioners (who were asleep in the car) to their apartment. Miss H. was a school 'dropout' and a drug user; she testified that she had previously been 'raped' while on drugs by a boy whom she continued to date for several months thereafter. She also admitted having voluntary sexual intercourse with her present boyfriend. After the alleged incident with petitioners, Miss H. was examined by a doctor; however, according to Miss H. the doctor found no injuries, bruises or other evidence that an act of sexual intercourse had occurred.

Petitioners admitted that they each had sexual intercourse with Miss H. on the day in question, but denied that these acts took place without her consent, or that oral copulation or sodomy occurred.

At the conclusion of the hearing, the magistrate made the following findings: 'Well, after listening for three different days to this, I believe the girl went with them willingly for the purpose of having sexual intercourse in the mountains. I believe that that's why the two Defendants went; that the firing of the guns was incidental and provided a vehicle or an excuse for going. I don't believe there were any handcuffs there. I don't believe there was any force used upon the girl, and I didn't even suspect that it was used.

'I don't believe that 288(a) (oral copulation) took place. I don't believe that 286 (sodomy) took place.'

The magistrate, however, ordered petitioners held to answer for the offense of 'statutory' rape (Pen.Code, § 261, subd. 1), an offense not included in the original complaint, since the evidence showed that they engaged in sexual intercourse with Miss H., who had testified that she had not reached the age of consent. (See Pen.Code, § 872.)

Thereafter, the district attorney filed in superior court an information which again charged petitioners with rape, oral copulation and sodomy; the information did not, however, charge the crime of 'statutory' rape. Petitioners moved to set aside the information in its entirety, pursuant to Penal Code, section 995. The superior court denied the motion, and petitioners now seek prohibition from this court, contending that the information is invalid in that it charges the commission of offenses which were expressly rejected by the committing magistrate.

Section 8, article I, of the California Constitution provides that '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. * * *' Penal Code, section 739 authorizes the district attorney to file in superior court, following the preliminary examination, '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. * * *' (Italics added.)

The cases have recognized that a literal construction of section 739 would bring it into conflict with the constitutional mandate which 'protects a person from prosecution in the absence of a prior determination by either a magistrate or a grand jury that such action is justified.' (Parks v. Superior Court, 38 Cal.2d 609, 611, 241 P.2d 521, 522; see People v. Bartlett, 256 Cal.App.2d 787, 790--791, 64 Cal.Rptr. 503; People v. Saldana, 233 Cal.App.2d 24, 28--29, 43 Cal.Rptr. 312; Mulkey v. Superior Court, 220 Cal.App.2d 817, 819--820, 34 Cal.Rptr. 121.) Accordingly, the rule has developed that an information which charges the commission of an offense not named in the commitment order will not be upheld unless (1) the evidence before the magistrate shows that such offense was committed (Pen.Code, § 739), and (2) that the offense 'arose out of the transaction which was the basis for the commitment' on a related offense. (Parks v. Superior Court, Supra 38 Cal.2d 609, 614, 241 P.2d 521, 524; see People v. Chimel, 68 Cal.2d 436, 443, 67 Cal.Rptr. 421, 439 P.2d 333, rev. on other grounds, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685; People v. Downer, 57 Cal.2d 800, 809--810; People v. Evans, 39 Cal.2d 242, 249, 246 P.2d 636.)

The foregoing rule has been applied to uphold the addition of an offense unnamed in the commitment order even though the magistrate has expressly or impliedly concluded that the evidence failed to show probable cause that the offense had been committed. (Parks v. Superior Court, Supra, 38 Cal.2d 609, 613--614, 241 P.2d 521; People v. Bird, 212 Cal. 632, 644--645, 300 P. 23 (magistrate rejected murder count, but upheld manslaughter count; information upheld charging murder); People v. Horton, 191 Cal.App.2d 592, 597, 13 Cal.Rptr. 33 (magistrate rejected sex perversion count, but upheld counts for statutory rape; information for former offense upheld); People v. Warren, 163 Cal.App.2d 136, 141, 328 P.2d 858; People v. Dean, 158 Cal.App.2d 572, 575, 322 P.2d 929; People v. Sturman, 56 Cal.App.2d 173, 177--178, 132 P.2d 504.)

Thus, in Parks, defendant was charged by complaint with two counts of grand theft and one count of writing a bad check. The magistrate discharged defendant as to both grand theft counts but held him to answer the latter charge; the district attorney, however, filed an information charging all three offenses. This court held that defendant was not properly charged with one of the grand theft offenses since it was unrelated to the transaction on which the commitment order was based. However, as to the second grand theft count, we stated 'As indicated herein the district attorney might include a related offense although the magistrate concluded impliedly or otherwise that the evidence did not show probable cause that such offense had been committed. The charges as to the theft of the lumber and the giving of a worthless check in payment thereof were related, arose out of the transaction which was the basis for the commitment and, depending on the evidence, could result in conviction of one charge or the other. The district attorney was therefore within his right to include the grand theft charge in the information if the necessary elements of that offense reasonably appeared from the evidence before the magistrate.' (38 Cal.2d at pp. 613--614, 241 P.2d at p. 524.)

The People contend that the information herein should be upheld under Parks, for the charges of rape, oral copulation and sodomy, though rejected by the magistrate, were transactionally related to the offense of 'statutory' rape for which petitioners were ordered committed, and those offenses were shown by Miss H.'s testimony to have occurred. We reject the People's position, for if Parks were so interpreted such a rule would circumvent the constitutional requirement (which Parks itself recognized and applied) that one may not be prosecuted in the absence of a prior determination of a magistrate or grand jury that such action is justified. Instead, we have concluded that Parks does not permit the district attorney to ignore material factual findings of the magistrate. Although the district attorney may, under Parks, challenge the magistrate's ultimate finding that the evidence is legally insufficient to show that the charged offense or offenses occurred, that challenge must be made within the context of the magistrate's findings on the evidence. For example, had the magistrate herein found that Miss H. did Not consent to intercourse with petitioners, or made no finding on that...

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