People v. Hawkins

• Decision Date: 30 October 1978
• Docket Number: C,Cr. 18144
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Appellant, v. Herman Eddie HAWKINS, Defendant and Respondent. PEOPLE of the State of California, Plaintiff and Appellant, v. Sal ESQUIVEL, Defendant and Respondent. r. 18283.

Page 855

149 Cal.Rptr. 855

85 Cal.App.3d 960

PEOPLE of the State of California, Plaintiff and Appellant, v. Herman Eddie HAWKINS, Defendant and Respondent.

PEOPLE of the State of California, Plaintiff and Appellant, v. Sal ESQUIVEL, Defendant and Respondent.

Cr. 18144, Cr. 18283.

Court of Appeal, First District, Division 1, California.

Oct. 30, 1978.

As Modified Nov. 7, 1978.

Evelle J. Younger, Atty. Gen. of Cal., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., Robert R. Granucci, Deputy Atty. Gen., San Francisco, for plaintiff and appellant.

Robert Nicco, Public Defender of the City and County of San Francisco, Gregory Pagan, Deputy Public Defender, San Francisco, for defendant and respondent Hawkins.

Goorjian & McCabe, J. Frank McCabe, San Francisco, for defendant and respondent Esquivel.

RACANELLI, Presiding Justice.

These consolidated cases were transferred to this court pursuant to rules 62 and 63 of the California Rules of Court, upon certification by the Appellate Department of the Superior Court of the City and County of San Francisco that review of its decision, reversing the action of a municipal court judge sitting as a magistrate in reducing a felony burglary complaint to a misdemeanor charge before the preliminary examination and imposing a misdemeanor sentence upon a plea of guilty, was necessary to secure uniformity of decision and to settle an important question of law. The question originally certified, decided in favor of the People, was whether a magistral exercise of discretion before preliminary examination under the authority of Penal Code section 17, subdivision (b)(5), ¹ requires a brief statement of facts and supporting reasons. During oral argument we requested the parties to file supplemental briefs on the related question whether, in accepting a defendant's plea to a crime divided in degrees without the prosecutor's consent and thereafter imposing a misdemeanor sentence, the magistrate exceeded his jurisdiction. Having considered the issues as briefed and argued, we conclude that under the circumstances reflected in each case the magistrate acted in excess of his limited jurisdiction rendering the proceedings undertaken void and ineffectual.

Facts

The facts as disclosed in each record are not in dispute: In each case the defendant was charged by complaint with a felony violation of section 459 (burglary) without specification of degree, it being alleged in substance that the defendant did enter a described private residence with the felonious intent to commit theft therein. ² Before the preliminary examination but without the express consent of the prosecutor, ³ the charge was reduced by the (same) magistrate to a misdemeanor under the apparent authority of section 17, subdivision (b)(5); upon waiving formal instructions and arraignment on the amended complaint, each defendant entered a plea of guilty and received a suspended one-year jail sentence plus probation as a convicted misdemeanant.

Jurisdictional Issue Presented

The threshold inquiry focuses upon the power of a magistrate acting under authority of section 17, subdivision (b)(5) ⁴ to accept a plea of guilty to a felony charge divided into degrees without prosecutorial consent. Our analysis compels the conclusion that the action of the magistrate was without statutory authority and void. However, for the reasons discussed hereafter (part III), we are nevertheless compelled to dismiss the People's appeal.

I

We begin our discussion with a review of the general principles governing the powers and duties of a magistrate as established by statutory law and precedents.

A magistrate is defined by the Legislature as "an officer having power to issue a warrant for the arrest of a person charged with a public offense." (§ 807.) All judges of courts of record and justice courts are authorized to perform the functions of a magistrate (§ 808) whose duties and authority are specifically designated and limited by statute. ⁵ (See People v. Uhlemann (1973) 9 Cal.3d 662, 667, 108 Cal.Rptr. 657, 511 P.2d 609 (authority to determine sufficient cause to hold a defendant for trial) and fn. 3 authorities there collected; Witkin, Cal.Criminal Procedure, § 16, p. 18; Burris v. Superior Court (1974) 43 Cal.App.3d 530, 537, 117 Cal.Rptr. 898.) Whenever a municipal court judge acts in the capacity of a magistrate, the judge possesses only the limited jurisdiction and magistral powers conferred by the state Constitution and statute. (People v. Crespi (1896) 115 Cal. 50, 54, 46 P. 863; accord: Koski v. James (1975) 47 Cal.App.3d 349, 355, 120 Cal.Rptr. 754; People v. Randall, 35 Cal.App.3d 972, 111 Cal.Rptr. 590.) The basic distinction between a municipal court judge sitting as a Magistrate (as here) and sitting as a municipal Court has been emphasized by our reviewing courts on numerous occasions as recently summarized in the opinion in Koski v. James, supra, at pages 354-355, 120 Cal.Rptr. at pages 758-759:

". . . when a felony complaint is filed a preliminary examination is held before a Magistrate, not a judge. (Citations.) The cases and statute hold that a felony complaint may be filed in any judicial district in the county in which the offense was committed, and the magistrate of the court in which the complaint is on file may conduct the preliminary examination. (Citations.) A magistrate is purely a creature of statute, the holder of a statutory office separate and distinct from the elective office of judge. (Citations.) A preliminary hearing is not a trial and a magistrate presiding at the hearing does not sit as a judge of a court and exercises none of the powers of a judge in a court proceeding. (Citations.) (P) 'When a judge of a particular judicial district acts in the capacity of a magistrate, he does not do so as a judge of a particular court but rather as one who derives his powers from the provisions of Penal Code, sections 807 and 808. (Citation.) By initiating proceedings before magistrates, no trial jurisdiction of any court is invoked.' (Citation.) (P) 'Equally it must be said that these preliminary proceedings do not invoke the jurisdiction of an inferior court. The action taken by a judge of an inferior court who has issued the order for arrest or before whom an arrested person is brought after an arrest without a warrant, is not action by a judge of any court. It is action by a magistrate as incumbent of a distinct and statutory office. (Citations.)' " (Cf. People v. Peters (1978) 21 Cal.3d 749, 147 Cal.Rptr. 646, 581 P.2d 651 (a magistrate is not a court within the meaning of section 1385).)

II

The crime of burglary is divided into degrees (§ 460) and is punishable by imprisonment in the state prison or, when fixed in the second degree, alternatively by confinement in the county jail. (§ 461.) Second degree burglary constitutes a misdemeanor for all purposes if a punishment or commitment other than imprisonment is imposed or it is judicially declared or determined a misdemeanor. (See § 17, subd. (b) et seq.) However, an accusation charging burglary in the language of the statute is sufficient to constitute a felony charge (People v. Rogers (1889) 81 Cal. 209, 22 P. 592; People v. Smith (1890) 86 Cal. 238, 24 P. 988); while better pleading practice may indicate the inclusion of allegations relevant to the degree (see People v. Taylor (1966) 247 Cal.App.2d 11, 55 Cal.Rptr. 521), it is unnecessary to allege the particular degree or facts establishing such degree (People v. Nunez (1970) 7 Cal.App.3d 655, 662-663, 86 Cal.Rptr. 707; People v. Walsh (1925) 75 Cal.App. 434, 243 P. 31; Witkin, Cal.Criminal Procedure, § 200, p. 189, and cases there cited).

It is clear that a magistrate is authorized to accept a plea of guilty to any noncapital felony charge "at any time . . . while the charge remains pending before the magistrate" (§ 859a) and thereafter to certify the matter to the superior court for further proceedings (People v. Superior Court (Barke) (1976) 64 Cal.App.3d 710, 715, 134 Cal.Rptr. 704). However, when the plea tendered to the magistrate pertains "to a crime divided into degrees," such plea may specify the degree only with The consent of the prosecuting attorney expressed in open court and the magistrate's approval. (§§ 1192.2, 1192.4.) ⁶ (Cf. § 1192.1 imposing the same requirement upon a similar plea of guilty in the superior court.)

In effect, in reducing the charge to a misdemeanor burglary followed by acceptance of a plea of guilty, the magistrate improperly fixed the degree of the admitted crime as second degree burglary. (See § 461.) Yet, absent the required prosecutorial consent, the magistrate was without authority to accept a guilty plea to such a "divided crime." In such circumstances the purported plea must be deemed withdrawn and the original felony charge remains subject to further appropriate pleas. (§ 1192.4.) And unless such offense is properly determined to be burglary in the second degree, it is not an offense punishable in the court's discretion alternatively (a "wobbler") "by imprisonment in the state prison or . . . county jail" (§ 17, subd. (b)) empowering the magistrate to declare it a misdemeanor under subdivision (b)(5). The attempt to circumscribe the explicit statutory restriction by purporting to invoke the statutory power reducing the charge to second degree burglary was wholly ineffectual and void. Under such circumstances the magistrate was without jurisdiction to accept the nonconsensual plea and the purported imposition of sentence on the invalid reduced misdemeanor charge constituted a nullity. (See Burris v. Superior Court, supra, 43 Cal.App.3d 530, 538, 117 Cal.Rptr. 898.) ⁷

III People's Right to Review

Finally, we address the defendants' contention that the People have no right to appeal from the order reducing the charge and suspending execution of the misdemeanor sentence imposed. As correctly argued by the...