Mulkey v. Superior Court In and For Ventura County
Decision Date | 02 October 1963 |
Citation | 34 Cal.Rptr. 121,220 Cal.App.2d 817 |
Parties | Delbert Arthur MULKEY, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF VENTURA, Respondent; The PEOPLE of the State of California, Real Party in Interest. Civ. 27632. |
Court | California Court of Appeals Court of Appeals |
Andrew J. Marsh, Oxnard, George N. Dyer, Jr., Ventura, for petitioner.
Woodruff J. Deem, Dist. Atty., Edwin M. Osborne, Chief Crim. Deputy Dist. Atty., Robert M. Stone, Deputy Dist. Atty., Ventura County, for respondent.
Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., for real party in interest.
Petitioner Delbert Arthur Mulkey seeks prohibition commanding respondent superior court to desist and refrain from further proceedings upon counts II, III and IV of an information charging him with violations of § 470, Penal Code, in that he did 'forge, utter or pass' four certain checks with intent to defraud.
The prosecution was commenced through filing of a complaint in the municipal court of Ventura Judicial District, County of Ventura, charing petitioner with five separate violations of § 470 of the California Penal Code, forgery and uttering a forged instrument. At the preliminary hearing the district attorney introduced into evidence four checks which had been forged, and called witnesses from the business establishments at which the forged checks had been passed. In each case the check was made out to Delbert Mulkey as payee, and three of the checks were endorsed in his name, but in only one instance was a witness able to remember the appellant as the person who had actually passed the check in question. Clarence Mulkey, brother of the appellant and his former employer, testified that the checks had been taken without his permission from a check book in his office. An expert witness called by the prosecution testified that in his opinion the face of the checks was not made out by the appellant but that the endorsements were undoubtedly his. Because of the lack of identification of the person or persons who passed three of the checks and because defendant had not forged the face of the checks, the magistrate determined that there was not sufficient cause to believe that Delbert Mulkey was guilty of counts II, III and IV, and held him to answer upon count I only.
The District Attorney filed an information in the respondent Superior Court accusing the petitioner of four violations of § 470 of the Penal Code. Count I alleged the same offense as the first count of the complaint below and counts II, III and IV of the information alleged the same violations which were alleged in counts II, III and IV of the complaint upon which the magistrate refused to commit the appellant because of lack of probable cause. This proceeding, as above stated, is for a Writ of Prohibition commanding the respondent Superior Court to refrain from any further proceedings on counts II, III and IV of the information.
Section 739 of the Penal Code provides that, '[w]hen a defendant has been examined and committed, as provided in Section 872, it shall be the duty of the district attorney of the county in which the offense is triable to file in the superior court of that county within 15 days after the commitment, 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. * * *' (Emphasis added.) Taken in its broadest sense this section could be interpreted to mean that the district attorney may charge a defendant with any offense shown by the evidence at the preliminary examination to have been committed. This section cannot be read in a vacuum, but only in connection with Article I, section 8 of the California Constitution, which provides: '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.' (Emphasis added.) Plainly this constitutional protection means that a defendant can be proceeded against by information only after there has been a preliminary examination and commitment order by a magistrate, but it does not mean that the district attorney must conform to the crimes designated by the magistrate in his commitment order. The question is how much deviation from the order is permissible.
In the leading case of People v. Bird, 212 Cal. 632, 636-639, 300 P. 23, the court held that a statute permitting the district attorney to prosecute a defendant for crimes shown by the evidence taken before the magistrate but not charged in the commitment order, did not violate section 8, article I of the Constitution. In that case the magistrate had bound the defendant over for manslaughter and the district attorney filed an information charging murder. The court affirmed the conviction, saying: (Emphasis added.) (Pp. 644-645 of 212 Cal., p. 28 of 300 P.)
In People v. Wyatt, 121 Cal.App. 180, 8 P.2d 901, the district court went beyond the scope of People v. Bird, and held that the district attorney could charge offenses unrelated and arising out of a different transaction from those for which the defendant was committed. The defendant was committed for three counts of grand theft and the information charged the three counts plus an additional five other counts of grand theft. Defendant was convicted of the seventh count, and the court said: (P. 185 of 121 Cal.App., p. 903 of 8 P.2d.) This holding was subsequently overruled in Parks v. Superior Court, 38 Cal.2d 609, 613, 241 P.2d 521, 523, where the court discussed People v. Wyatt, supra, and said that (Emphasis added.) The court summarized the effect of People v. Bird, supra, 212 Cal. 632, 300 P. 23, and concluded that '[t]he court stated or plainly implied * * * that an information would be contrary to the constitution if it designated a crime or crimes unrelated to or unconnected with the transaction which was the basis for the commitment order. [Emphasis added.]
(P. 612 of 38 Cal.2d, p. 523 of 241 P.2d.)
Thus the presently prevailing test laid down by the Supreme Court to determine validity of additional charges in the information is whether there is some 'transactional' relationship which relates or connects the added charges and the crimes listed in the commitment order. (People v. Evans, 39 Cal.2d 242, 249, 246 P.2d 636; Parks v. Superior Court, supra, 38 Cal.2d 609, 612, 241 P.2d 521; People v. Bird, supra, 212 Cal. 632, 645, 300 P. 23.) See also, People v. Kellin, 209 Cal.App.2d 574, 576, 25 Cal.Rptr. 925; People v. Warren, 163 Cal.App.2d 136, 141, 328 P.2d 858; People v. Bowman, 156 Cal.App.2d 784, 802, 320 P.2d 70; People v. Dean, 158 Cal.App.2d 572, 575, 322 P.2d 929; People v. Azevedo, 218 A.C.A. 507, 513, 32 Cal.Rptr. 748; People v. Horton, 191 Cal.App.2d 592, 597, 13 Cal.Rptr. 33. The court in People v. Johnson, 163 Cal.App.2d 58, 61, 328 P.2d 809, 811, quotes People v. Branch, 119 Cal.App.2d 490, 495-496, 260 P.2d 27, as follows: In People v. Warren, supra, 163 Cal.App.2d 136, 141, 328 P.2d 858, 861, the court held that '[i]t would appear that the only requirement is that the additional charge filed by the district attorney arises out of the same transaction as the one for which the accused is held to answer.'
Although the magistrate specifically dismisses certain counts charged against the defendant in the preliminary hearing, the district attorney may subsequently add them to the information if related to or connected with the crime or crimes for which the defendant is committed by the magistrate. (Parks v. Superior Court, supra, 38 Cal.2d 609, 241 P.2d 521; People v. Horton, supra, 191 Cal.App.2d 592, 13 Cal.Rptr. 33; People v. Warren, supra, 163 Cal.App.2d 136, 328 P.2d 858; People v. Dean, supra, 158 Cal.App.2d 572, 322 P.2d 929; People v. Bowman, supra, 156 Cal.App.2d 784, 320 P.2d 70.) In Parks the court said the district attorney may include 'a related offense although the magistrate concluded impliedly or otherwise...
To continue reading
Request your trial-
Ondarza v. Superior Court
...Cal.App.2d 24, 29-30, 43 Cal.Rptr. 312, cert. den. (1966) 384 U.S. 1026, 86 S.Ct. 1938, 16 L.Ed.2d 1032; Mulkey v. Superior Court (1963) 220 Cal.App.2d 817, 821, 825, 34 Cal.Rptr. 121.) These cases rather clearly set the parameters of the transactional relationship test. Applying that test ......
-
People v. Chimel
...order', [Emphasis added.] (People v. Downer, 57 Cal.2d 800, 810, 22 Cal.Rptr. 347, 353, 372 P.2d 107, 113; Mulkey v. Superior Court, 220 Cal.App.2d 817, 824, 34 Cal.Rptr. 121; People v. Evans, 39 Cal.2d 242, 249, 246 P.2d 636), herein there was a complete absence of evidence adduced at the ......
-
People v. Johnson, B201943 (Cal. App. 7/15/2009)
...order. (Jones v. Superior Court (1971) 4 Cal.3d 660, 664-665; People v. Gil (1992) 3 Cal.App.4th 653, 658-659; Mulkey v. Superior Court (1963) 220 Cal.App.2d 817, 823-824.) This is not a case where the trial court lacked jurisdiction because the defendant was convicted of an offense not sho......
-
People v. Bartlett
...v. Downer, 57 Cal.2d 800, 22 Cal.Rptr. 347, 372 P.2d 107; People v. Saldana, 233 Cal.App.2d 24, 43 Cal.Rptr. 312; Mulkey v. Superior Court, 220 Cal.App.2d 817, 34 Cal.Rptr. 121.) Section 739 must be read in the light of article I, section 8, of the Constitution, which provides that offenses......