Ng v. Superior Court

• Decision Date: 03 December 1992
• Docket Number: No. S025119,S025119
• Citation: 4 Cal.4th 29,13 Cal.Rptr.2d 856,840 P.2d 961
• Court: California Supreme Court
• Parties: , 840 P.2d 961 Charles C. NG, Petitioner, v. The SUPERIOR COURT of the City and County of San Francisco, Respondent. The PEOPLE, Real Party in Interest.

Page 856

13 Cal.Rptr.2d 856

4 Cal.4th 29, 840 P.2d 961

Charles C. NG, Petitioner, v. The SUPERIOR COURT of the City and County of San Francisco, Respondent The PEOPLE, Real Party in Interest.

No. S025119.

Supreme Court of California In Bank.

Dec. 3, 1992.

Jeff Brown, Public Defender, under appointment by the Supreme Court, Michael N. Burt, Deputy Public Defender, and Peter G. Keane, San Francisco, for petitioner.

No appearance for respondent.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., John H. Sugiyama, Asst. Atty. Gen., Morris Beatus and Dane R. Gillette, Deputy Attys. Gen., for real party in interest.

ARABIAN, Justice.

Defendant, being prosecuted on felony charges in one county, seeks to be transported to another county for arraignment on unrelated felony charges. We are asked to decide whether he must be arraigned in the second county during the pendency of the first proceeding. We hold that the defendant need not be arraigned in the second county until the criminal proceedings in the first county have concluded.

I. FACTS

In 1985 and 1986, two no-bail arrest warrants were issued in San Francisco Municipal Court on complaints charging defendant with murder, attempted murder, and being an accessory to another murder. For some period prior to and during 1991, defendant was incarcerated in Canada on unrelated charges. On September 26, 1991, he was extradited to California because of other unrelated capital charges in Calaveras County and because of some or all of the San Francisco charges. Pursuant to an order of the Calaveras County Superior Court, he was placed into custody at Folsom Prison. The next day, September 27, defendant was arraigned in the Calaveras County Justice Court on the capital charges, including 11 counts of first degree murder. Those charges are pending.

Since October 1991, defendant has actively sought to be transported to San Francisco for arraignment on the charges in that jurisdiction. After his attempts to obtain relief in the municipal and superior courts of San Francisco failed, he filed a petition for a writ of mandate/prohibition in the Court of Appeal asking the court to order his transportation to, and arraignment in, San Francisco. The Court of Appeal requested informal opposition from the Attorney General, and advised the parties that it might issue a peremptory writ in the first instance. (See Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 203 Cal.Rptr. 626, 681 P.2d 893 (Palma ).)

After receiving opposition, on February 4, 1992, the Court of Appeal filed an opinion ordering the issuance of a peremptory writ of mandate directing the San Francisco Superior Court to direct the municipal court to "arrange forthwith for the arraignment of [defendant] on the complaints filed against him in that court." The opinion also stated, "To facilitate the relief requested, this order is final forthwith. (Cal.Rules of Court, rule 24(d).)" Two days later, purporting to act pursuant to the "peremptory writ of mandate" issued by the Court of Appeal, the San Francisco Superior Court issued its own peremptory writ of mandate commanding the municipal court to arrange for defendant's arraignment "forthwith." The municipal court scheduled the arraignment for February 13; the warden of Folsom Prison was ordered to deliver defendant for the arraignment on that date.

On February 11, 1992, we stayed the orders, and on March 19, 1992, granted the Attorney General's petition for review.

II. DISCUSSION

A. Procedural Matters

Substantial confusion followed the filing of the Court of Appeal opinion ordering the issuance of a peremptory writ of mandate. As noted, the opinion, citing California Rules of Court, rule 24(d) (all rule citations are to these rules), stated that the "order is final forthwith." What the court undoubtedly meant to say, and should have said more clearly, is that the order is final forthwith "as to that court." (Rule 24(d).)

As we explained in Palma, supra, 36 Cal.3d at pages 180-181, 203 Cal.Rptr. 626, 681 P.2d 893, the rule "now permits the Court of Appeal to direct also that its decision granting the peremptory writ shall become final 'as to that court within a stated period less than 30 days or that it shall be final as to that court immediately if early finality is necessary to prevent mootness or to prevent frustration of the relief granted.' In any event, it is only when the decision becomes final as to both the Court of Appeal and this court that the peremptory writ actually issues." (Emphasis in original, quoting former rule 24(c) (now rule 24(d)), fn. omitted.) The Court of Appeal decision in this case would not become final as to this court until at least 30 days after it became final as to the Court of Appeal, that is, 30 days after it was filed. (Rule 28; see Palma, supra, 36 Cal.3d at p. 183, fn. 11, 203 Cal.Rptr. 626, 681 P.2d 893.)

Although the Court of Appeal opinion was not final, and the peremptory writ had thus not issued, the opinion was immediately presented to the San Francisco Superior Court. That court mistook the opinion for the "peremptory writ of mandate" itself. It issued its own peremptory writ directed to the municipal court. The latter court then ordered defendant arraigned a mere nine days after the Court of Appeal opinion was filed. This unduly hasty action necessitated an emergency stay by this court to preserve real party in interest's right to petition for review.

We reiterate what we explained in Palma, supra. The opinion of February 4, 1992, was not the writ itself, and it had no effect until it became final as to this court as well as the Court of Appeal. "The ... distinction between the judgment or decision directing that the writ issue, and the writ itself, applies when the peremptory writ is issued in the first instance.... [A] judgment or order directing that the writ issue must be entered by the court before the writ may be issued by an appellate court. [Citations.] That judgment or order is an appealable judgment if made by a superior court [citation] or is a decision subject to a petition for hearing [now review] in this court if made by a Court of Appeal. (Rule 28.) A Court of Appeal lacks authority either to issue a peremptory writ without prior entry of an order directing its issuance or to make such an order final forthwith, thereby to permit the immediate issuance of the writ itself without opportunity for review of the order by this court." (Palma, supra, 36 Cal.3d at pp. 181-182, 203 Cal.Rptr. 626, 681 P.2d 893, fn. omitted.) The writ itself may not be issued "before the judgment or order directing that it issue has been filed and has become final." (Id. at p. 181, fn. 9, 203 Cal.Rptr. 626, 681 P.2d 893.)

The superior court thus erred in treating the opinion as the writ, and acting upon it immediately. Henceforth, any Court of Appeal opinion accelerating the date of finality under rule 24(d) should make clear that the finality referred to is only as to that court, and not for all purposes. Likewise, the party to whom the writ will be directed--the superior court in this case--should not mistake the opinion for the writ itself. It should await issuance of the writ before acting upon it in order to preserve further available appellate proceedings. ¹

Although our plenary review of the merits of this case renders moot the procedure followed in the Court of Appeal, we also question the propriety of using the accelerated procedures established in Palma, supra, 36 Cal.3d 171, 203 Cal.Rptr. 626, 681 P.2d 893. In Palma, we permitted the issuance of a peremptory writ in the first instance, with procedural safeguards which were followed here. But we also deemed the procedure a "rarity." (Id. at p. 179, 203 Cal.Rptr. 626, 681 P.2d 893; see also Bay Development Ltd. v. Superior Court (1990) 50 Cal.3d 1012, 1035, 269 Cal.Rptr. 720, 791 P.2d 290 (conc. opn. of Lucas C.J.).) We stress that the accelerated Palma procedure is the exception; it should not become routine. Generally, that procedure should be adopted only when petitioner's entitlement to relief is so obvious that no purpose could reasonably be served by plenary consideration of the issue--for example, when such entitlement is conceded or when there has been clear error under well-settled principles of law and undisputed facts--or when there is an unusual urgency requiring acceleration of the normal process. If there is no compelling temporal urgency, and if the law and facts mandating the relief sought are not entirely clear, the normal writ procedure, including issuance of an alternative writ (see Palma, supra, 36 Cal.3d at pp. 177-178, 203 Cal.Rptr. 626, 681 P.2d 893) should be followed.

In this case, defendant presented the Court of Appeal with a novel contention. Although the relevant facts are generally undisputed, any legal entitlement to immediate multiple arraignments was far from clear. Defendant had been incarcerated in Canada for years, much of the time resisting extradition to California. There was no apparent need for the sudden rush to judgment when he finally was extradited. We thus doubt that the rare procedure of issuing a peremptory writ in the first instance was appropriate. We need not decide the point definitively, however, for we now turn to our own consideration of the merits of defendant's petition.

B. The Merits

In ordering that defendant be arraigned in San Francisco, the Court of Appeal relied primarily on California Constitution, article I, section 14, which provides in pertinent part: "A person charged with a felony by complaint subscribed under penalty of perjury and on file in a court in the county where the felony is triable shall be taken without unnecessary delay before a magistrate of that court." ² The court also cited language by this court that "The right to a prompt arraignment is ' "a fundamental right of the arrested person" '...." (People v. Thompson (1980) 27 Cal.3d...