People v. Justice Court (Deroco)
| Decision Date | 15 April 1981 |
| Citation | 118 Cal.App.3d 78,173 Cal.Rptr. 851 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Defendant and Respondent, v. JUSTICE COURT OF the OROVILLE JUDICIAL DISTRICT, COUNTY OF BUTTE, State of California, Gerald N. DeROCO, Real Party in Interest and Appellant. PEOPLE of the State of California, Plaintiff and Appellant, v. JUSTICE COURT OF the OROVILLE JUDICIAL DISTRICT, COUNTY OF BUTTE, State of California, Defendant and Respondent, Robert C. JOHNSON, Real Party in Interest and Appellant. PEOPLE of the State of California, Plaintiff and Respondent, v. JUSTICE COURT OF the OROVILLE JUDICIAL DISTRICT, COUNTY OF BUTTE, State of California, Defendant and Respondent, Richard Boyd JOHNSON, Real Party in Interest and Appellant. . Civ. 19545 |
Mulkey, Aisthorpe, Kelly & Cook, Loyd H. Mulkey, Jr., Chico, for real party in interest and appellant, Gerald N. DeRoco.
Sedor, Gilbert & Van Dervoort and J. Joseph Van Dervoort, Oroville, for real party in interest and appellant, Robert C. Johnson.
Howell & Howell and Steven J. Howell, Oroville, for real party in interest and appellant, Richard Boyd Johnson.
No appearance for the defendant and respondent Justice Court.
George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Shirley A. Nelson and Joel Carey, Deputy Attys. Gen., for plaintiff and respondent.
Real parties in interest (hereinafter defendants), against whom felony charges were filed, appeal from judgments granting writs of prohibition and mandate to prevent justice court judges sitting as magistrates from ruling on pre-preliminary hearing motions and demurrers. Defendant Richard Johnson moved for discovery and recusal of the Butte County District Attorney's Office. Defendants Robert Johnson and Gerald DeRoco demurred. The People opposed the motions and demurrers on the basis of lack of jurisdiction, and also petitioned the superior court. The court granted the petitions and issued the writs "solely under the compulsion of the new Peter's principle" (People v. Peters (1978) 21 Cal.3d 749, 147 Cal.Rptr. 646, 581 P.2d 651). We consolidated the cases on appeal.
The issue of a magistrate's jurisdiction to entertain and rule upon a demurrer has now been determined at the appellate level. In In re Geer (1980) 108 Cal.App.3d 1002, 166 Cal.Rptr. 912, decided after the issuance of the writs before us, the Court of Appeal reviewed a magistrate's order transferring a pending case (in which the preliminary hearing had not yet been held) to the superior court for hearing on a demurrer. The court reviewed the relevant statutory and case law, including People v. Peters, supra, and concluded the magistrate could and should hear and rule on the demurrer. We agree.
The issue of discovery motions before magistrates has also been recently considered at the appellate level. Two cases are presently pending before our Supreme Court (Younger v. Municipal Court (Monica), 2 Civ. 57355 1 and Holman v. Superior Court, 1 Civ. 50084 2) which undoubtedly will determine the issue. Meanwhile, existing authority shows that a defendant has a constitutional and statutory right to present an affirmative defense at a preliminary hearing (Jennings v. Superior Court (1967) 66 Cal.2d 867, 871, 59 Cal.Rptr. 440, 428 P.2d 304) and that pre-hearing discovery may be necessary to effectuate that right (People v. Hertz (1980) 103 Cal.App.3d 770, 163 Cal.Rptr. 233; see also Theodor v. Superior Court (1972) 8 Cal.3d 77, 90, 104 Cal.Rptr. 226, 501 P.2d 234; Mitchell v. Superior Court...
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Holman v. Superior Court
...Code section 1385; in the present case, there exist no controlling statutes to interpret. (Accord, People v. Justice Court (DeRoco) (1981) 118 Cal.App.3d 78, 80-81, 173 Cal.Rptr. 851.) As we indicated above, it is the general rule that in the absence of contrary legislation courts have the ......