People v. Davis

• Decision Date: 18 June 1979
• Docket Number: Cr. 33964
• Citation: 156 Cal.Rptr. 395,94 Cal.App.3d 215
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Appellant, v. Frank DAVIS, Jr., Defendant and Respondent.

Page 395

156 Cal.Rptr. 395

94 Cal.App.3d 215

The PEOPLE, Plaintiff and Appellant, v. Frank DAVIS, Jr., Defendant and Respondent.

Cr. 33964.

Court of Appeal, Second District, Division 4, California.

June 18, 1979.

Burt Pines, City Atty., Rand Schrader, Chris M. Westhoff, Kate E. Kaplan, Mark L. Brown and Laurie Harris, Deputy City Attys., for plaintiff and appellant.

Stephen H. Leventhal, Los Angeles, for defendant and respondent.

Wilbur F. Littlefield, Public Defender, and Anita Susan Brenner, Deputy Public Defender, amicus curiae.

John K. Van de Kamp, Dist. Atty., and Harry B. Sondheim, Head, App. Division, Deputy Dist. Atty., amicus curiae in support of appellant.

Dennis A. Fischer, Deputy Public Defender, amicus curiae on behalf of respondent.

FILES, Presiding Justice.

This appeal was transferred here from the Appellate Department of the Los Angeles Superior Court under rule 62, California Rules of Court, to settle an important question of law: that is, in a criminal case may the People appeal from a pretrial order of the municipal court striking an allegation of prior conviction. We have concluded that the order is appealable under Penal Code section 1466.

The complaint charged in count I that, on July 14, 1977, defendant drove a motor vehicle under the influence of intoxicating liquor in violation of Vehicle Code section 23102, and in count II that he drove with a suspended or revoked license in violation of Vehicle Code section 14601.1. The complaint also alleged that, on February 20, 1973, defendant had suffered a prior conviction of section 23102. At a hearing on January 19, 1978, prior to trial, the defendant made a motion to strike the prior upon the ground that it was constitutionally invalid. The court examined a certified copy of the docket reflecting the 1973 proceedings and ordered the prior stricken upon the ground that the defendant had pleaded guilty without any showing in the docket that he had expressly waived the right to subpoena witnesses. Defendant thereafter pleaded guilty to the 1977 charges and was sentenced as a first offender.

The order striking the 1973 prior conviction was error. (See Mills v. Municipal Court (1973) 10 Cal.3d 288, 308, 110 Cal.Rptr. 329, 515 P.2d 273.) The sole issue requiring discussion is whether that order is appealable.

Appeals from the municipal court in criminal cases are governed by Penal Code section 1466, which authorizes an appeal "I. By the people: (a) From an order or judgment dismissing or otherwise terminating the action before the defendant has been placed in jeopardy or where the defendant has waived jeopardy; . . . "

The critical question is whether an order "dismissing or otherwise terminating the action" includes the order striking the charge of a prior conviction. In approaching that issue it is useful to compare the language of Penal Code section 1238, which identifies the orders of the superior court from which the People may appeal.

Section 1238 provides:

"(a) An appeal may be taken by the people from any of the following:

"(1) An order setting aside the indictment, information, or complaint.

" . . .

"(8) An order or judgment dismissing or otherwise terminating the action before the defendant has been placed in jeopardy or where the defendant has waived jeopardy.

" . . . "

People v. Burke (1956) 47 Cal.2d 45, 301 P.2d 241 was an appeal by a defendant who had been convicted of possession of marijuana. Although the People had not appealed, the Attorney General asked the Supreme Court to reverse for the purpose of having the sentence increased. The information had included an allegation that the defendant had suffered a prior conviction for violation of the possession statute, and defendant had admitted the truth of that allegation. At that time Health and Safety Code section 11712 provided that one who had previously been convicted of a felony would be sentenced to the state prison. The trial court had stricken the allegation of a prior conviction and sentenced the defendant to the county jail.

In rejecting the People's contention the Supreme Court said (at pp. 53-54, 301 P.2d at p. 246.):

"Furthermore, the People failed to appeal, although the order striking the charge of prior conviction was in its nature one of the orders specified as appealable either by paragraph 1 or by paragraph 6 of section 1238 of the Penal Code. That statute provides that the People may appeal '1. From an order setting aside the indictment, information, or complaint; * * * 6. From an order modifying the verdict or finding by reducing the degree of the offense or the punishment imposed.' The trial court's action was in substance 'an order setting aside (a part of) the * * * information'; having set aside that part of the information charging a prior conviction the court properly made no finding on that issue. The People contend, implicitly or explicitly, not only that it was error to set aside the charge but that on the record the court was bound to let the information stand as filed, to accept the defendant's admission, and to make a finding and to enter sentence in accord therewith. If for purposes of this decision we accept the People's above stated contention then it would follow that the purpose and ultimate effect of the court's order were the same as those of 'an order modifying the verdict or finding by reducing the degree of the offense or the punishment imposed.' Regardless of whether the action of the trial court be regarded as 'an order setting aside (a part of the) * * * information' or as 'an order modifying the verdict or finding by reducing the degree of the offense or the punishment imposed,' it would appear that the People, if they were successfully to attack such action, must not only not have assented to it but must have taken an appeal. The failure of the People to appeal, like their silence when the dismissal order was made, indicates acquiescence in the order and the sentence which followed."

The statement that the People had a right of appeal from the order striking the prior was not necessary to the decision. The result in the Burke case had to be the same whether or not the People had a right of appeal, since the People had not filed any notice of appeal. Nevertheless, the reasoning of the Supreme Court as to the meaning of paragraph 1 of Penal Code section 1238 has not been challenged in any subsequent judicial decision. Several opinions have indicated continuing acceptance of the Burke analysis.

In People v. Drake (1977) 19 Cal.3d 749, 139 Cal.Rptr. 720, 566 P.2d 622, the court held that neither paragraphs 1 nor 6 of section 1238 authorized a People's appeal from an order modifying a finding of guilty of robbery to the lesser offense of grand theft. Of interest here is footnote 7 in which the Drake court stated:

"7 The People rely on People v. Burke (1956) 47 Cal.2d 45, 53, 301 P.2d 241, 246, in which this court stated that an order striking the charge of a prior conviction 'was in its nature one of the orders specified as appealable either by paragraph 1 or by paragraph 6 of section 1238 of the Penal Code.' However, in People v. Valenti (1957) 49 Cal.2d 199, 207, 316 P.2d 633, we emphasized that the considerations involved in the appeal or an order striking a prior conviction are quite different from those involved in the appeal of an order which goes to the 'cause of action itself,' as does the order in this case."

The Drake opinion, in holding that Burke does not make appealable an order reducing the offense of which the defendant had been convicted, nevertheless confirmed the view that Burke correctly stated the law with respect to orders striking prior convictions.

People v. Clark (1970) 3 Cal.3d 97, 89 Cal.Rptr. 253, 473 P.2d 997, was an appeal by the People from an order striking an allegation of prior narcotics convictions. The court considered the appeal on its merits and affirmed without any discussion of the appealability of the order.

Further support for the Burke analysis is found in two other cases which have indicated, although in dicta, the view that a municipal court order striking a prior is appealable by the People. (See Hasson v. Cozens (1970) 1 Cal.3d 576, 579-580, 83 Cal.Rptr. 161, 463 P.2d 385; Gonzalez v. Municipal Court (1973) 32 Cal.App.3d 706, 710, 108 Cal.Rptr. 612.) In Hasson, our Supreme Court found a municipal court order determining invalidity of a prior offense to be res judicata, and pointed out that the People took no appeal from that order. Similarly, in Gonzalez, The Court of Appeal declared that an order striking an allegation of prior conviction was res judicata, and alluded to the fact that the People had taken no appeal from that order. Again, although not a holding on the question of appealability, the courts' language reflects the assumption that the Burke analysis is applicable to orders of the municipal court striking priors.

Section 1238, subdivision (a)(1), has been interpreted as authorizing a People's appeal from an order dismissing some but not all counts of a multi-count information. (People v. Shirley (1978) 78 Cal.App.3d 424, 426, 144 Cal.Rptr. 282.)

Section 1466, subdivision (1), has similarly been construed as authorizing a People's appeal from an order dismissing one count of a multi-count complaint. (People v. Agnello (1968) 259 Cal.App.2d 785, 789, 66 Cal.Rptr. 571. Accord: People v. Saffell (1946) 74 Cal.App.2d Supp. 967, 971, 168 P.2d 497; People v. Ring (1937) 26 Cal.App.2d Supp. 768, 770, 70 P.2d 81.)

It is also noteworthy that the exact language of section 1466, subdivision (1) (a) was added to section 1238 as subdivision (a)(8) in 1968, which was subsequent to the 1956 Burke decision. This language was relied upon in People v. Orin (1975) 13 Cal.3d 937, 940, 120 Cal.Rptr. 65, 533 P.2d 193, as authorizing an appeal by the People from an order dismissing two counts of a three-count information. The opinion did not discuss appealability other...