Parks v. Superior Court In and For Alameda County

• Decision Date: 18 March 1952
• Court: California Supreme Court
• Parties: . S. F. 18524. Supreme Court of California, In Bank

Page 521

241 P.2d 521

38 Cal.2d 609

PARKS v. SUPERIOR COURT IN AND FOR ALAMEDA COUNTY et al.

S. F. 18524.

Supreme Court of California, In Bank.

March 18, 1952.

Robert H. Kroninger, Oakland, Davis & Barber and Robert K. Barber, all of San Francisco, for petitioner.

J. F. Coakley, Dist. Atty., John J. Schauer, Jr., and Lloyd H. Burke, Deputy Dist. Attys., all of Oakland, for respondents.

SHENK, Justice.

Petitioner seeks the writ of prohibition to prevent the Superior Court in Alameda County from taking further proceedings on an information filed against him.

A complaint was filed against petitioner which charged grand theft of $2463 from one Palmer; grand theft of 12,000 board feet of lumber of the reasonable value of $843.76; and the intentional writing of a bad check for $843.76 in payment (Penal Code Section 476a). A preliminary examination was held and evidence was introduced as to each of the three counts.

Evidence as to the first grand theft count indicated that petitioner secured $2,463 from a Mrs. Palmer on the basis of misrepresentations concerning the value of a certain security he gave for the repayment of that sum.

Evidence on the second grand theft count and the violation of Section 476a indicated that petitioner bought some lumber from Heacox in September 1950; that he had the lumber sent to a mill during the same month, and that on November 3, 1950, he caused the issuance of his check for $843.76, the balance then due on the purchase price of the lumber. His balance at the drawee bank was $892 as of the close of business on November 2, 1950, and $666.45 as of the close of business on November 3, 1950. The balance was $245.14 on the day the check was presented for payment. The account was completely depleted by December 4, 1950.

The magistrate dismissed the two grand theft counts and discharged the petitioner as to these counts on the ground that no public offenses had been committed. He did, however, order the petitioner held to answer on the charge that he had violated Penal Code Section 476a.

The district attorney then filed an information charging the commission of all three offenses alleged in the complant. The information asserted that the alleged theft of the lumber from Heacox and the issuance of the partially worthless check were acts which were connected in their commission, but no contention is made that there was any connection between them and the Palmer transaction. Petitioner moved the superior court for an order setting aside the information pursuant to Section 995 of the Penal Code on the grounds that he had not been legally committed and that he had been committed without reasonable or probable cause. The respondent court denied the motion, set a trial date, and will proceed with the trial on all three counts unless restrained.

Petitioner contends (1) that the information is invalid insofar as it charged two instances of grand theft since these offenses constituted counts in the complaint which were dismissed by the magistrate and (2) that it is invalid as to all three crimes charged since the evidence at the preliminary examination failed to show reasonable cause to believe that he had committed a public offense.

The first ground of the motion brings into question the legality of the commitment pursuant to section 8 of Article I of the State Constitution and Section 739 (formerly Section 809) of the Penal Code.

Section 8, Article I, of the Constitution 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. * * *' Section 739 of the Penal Code requires the district attorney to file within fifteen days after examination and commitment an information 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.

In the decisions which outline the duties of the district attorney pursuant to the foregoing provisions of the law there has been no departure from the proposition that the constitution 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. The legislative history and various claimed grounds of unconstitutionality of the provisions of former section 809 were rather extensively treated in People v. Bird, 212 Cal. 632, 300 P. 23. The effect of the court's declarations of the constitutional operation of the section was to approve the filing of an information charging a different but related crime shown by the evidence taken before the magistrate bearing on the transaction involved in the commitment order. The court stated or plainly implied, 212 Cal. at pages 643-645, 300 P. 23, that an information would be contrary to the constitution if it designated a crime or cirmes unrelated to or unconnected with the transaction which was the basis for the commitment order.

The holding of the Bird case has been followed or applied in other cases in this court and in the District Courts of Appeal. People v. McGee, 31 Cal.2d 229, 187 P.2d 706; People v. Tallman, 27 Cal.2d 209, 163 P.2d 857; People v. Griffin, 106 Cal.App.2d 531, 235 P.2d 424; People v. Sturman, 56 Cal.App.2d 173, 132 P.2d 504; People v. Dal Porto, 17 Cal.App.2d 755, 62 P.2d 1061, 63 P.2d 1199; People v. Shutler, 15 Cal.App.2d 704, 59 P.2d 1050; People v. Malowitz, 133 Cal.App. 250, 24 P.2d 177; People v. Lee, 125 Cal.App. 709, 13 P.2d 943; People v. Sanders, 102 Cal.App. 237, 283 P. 136; People v. Barnett, 99 Cal.App. 409, 278 P. 885.

In the present case as to the Palmer transaction the discrepancy between the crime named in the commitment and the crimes charged in the information concerns more than the mere designation of the crime or crimes as they relate to the transaction upon which the commitment was based. The information charges grand theft based on the Palmer transaction which has no relation to or connection with the transaction on which the order of commitment was based. As to the Palmer transaction the magistrate discharged the petitioner on the ground that the evidence showed that no public offense had been committed. As to that transaction there was no commitment order. It may not be contended that where a single transaction or course of conduct is involved in the preliminary hearing the district attorney has power to file an information after the petitioner has been discharged by the magistrate because of a showing that no public offense has been committed. Such a procedure would be contrary to the protection afforded by the constitutional provision and is not within the permissive powers under the code section. Those powers depend on the issuance of an order of commitment. No exception to this dependence may be made because of the circumstance that the defendant in the same proceeding was charged and heard on two separate, unrelated and unconnected transactions. As indicated in the Bird case the constitutional provision would be nullified if by this device the district attorney might proceed without first having obtained an order of commitment.

Cases such as People v. Sanders, 102 Cal.App. 237, 283 P. 136, and People v. Malowitz, 133 Cal.App. 250, 24 P.2d 177, above cited, cannot be deemed to have sanctioned a departure from that conclusion. In the Sanders case there was no discussion as to whether the several counts related to separate transactions. In fact the opinion suggests that they related to the same transaction and that the question was solely one of identity of the victim. In the Malowitz case the court followed the Bird decision on the assumption that the facts were parallel. There was no disclosure in the...