People v. Konow

• Decision Date: 22 April 2004
• Docket Number: No. S111494.,S111494.
• Citation: 12 Cal.Rptr.3d 301,88 P.3d 36,32 Cal.4th 995
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Appellant, v. Carolyn KONOW et al., Defendants and Respondents.

12 Cal.Rptr.3d 301

88 P.3d 36

32 Cal.4th 995

The PEOPLE, Plaintiff and Appellant, v. Carolyn KONOW et al., Defendants and Respondents.

No. S111494.

Supreme Court of California.

April 22, 2004.

Rehearing Denied June 23, 2004.

Paul J. Pfingst and Bonnie M. Dumanis, District Attorneys, Thomas F. McArdle, Anthony Lovett, Josephine A. Kiernan and Kim Thoa Hoang, Deputy District Attorneys, for Plaintiff and Appellant.

Michael J. McCabe, under appointment by the Supreme Court, San Diego, for Defendant and Respondent Carolyn Konow.

Steven J. Carroll, Public Defender, under appointment by the Supreme Court, Matthew Braner and Selena Dong, Deputy Public Defenders, for Defendant and Respondent Steven Rohrer.

Cynthia M. Sorman, under appointment by the Supreme Court, and Diane Nichols, for Defendant and Respondent Amy Toosley.

Marianne Harguindeguy Cox, under appointment by the Supreme Court, for Defendant and Respondent Daniel O'Neil.

GEORGE, C.J.

In this case, we address two issues relating to the pretrial stage of a criminal proceeding. Under Penal Code section 871,¹ after hearing the evidence presented at a preliminary examination, a magistrate must dismiss a complaint charging a felony "[i]f ... it appears either that no public offense has been committed or that there is not sufficient cause to believe the defendant guilty of a public offense." Under section 1385, the magistrate also may dismiss such a complaint, "either of his or her own motion or upon the application of the prosecuting attorney, ... in furtherance of justice." (§ 1385, subd. (a).) If the magistrate dismisses the complaint under either provision, the People may move in superior court under section 871.5 "to compel the magistrate to reinstate the complaint." (§ 871.5, subd. (a).) If the superior court orders the magistrate to reinstate the complaint, and if on remand the magistrate orders the defendant committed and an information subsequently is filed charging the defendant with the felony in question, the defendant may move in superior court to set aside the information under section 995 on the ground that he or she "had not been legally committed by [the] magistrate" or "had been committed without reasonable or probable cause." (§ 995, subd. (a)(2).)

The Court of Appeal concluded that in ruling on a motion by a defendant to set aside an information under section 995, the superior court is not authorized to review a prior order of the superior court compelling the magistrate to reinstate the complaint under section 871.5, and that the superior court would violate the California Constitution were it to do so. The Court of Appeal also concluded that the superior court may not set aside an information under section 995 when the magistrate erroneously and prejudicially failed to consider whether to dismiss the complaint in furtherance of justice under section 1385, reasoning that any such failure could not deny a defendant a substantial right affecting the legality of the commitment, because the defendant has no right formally to move for dismissal under section 1385.

We granted review to consider the two issues addressed in the Court of Appeal's decision.

As to the first issue, we conclude, contrary to the Court of Appeal's determination, that the superior court in ruling on a motion to set aside an information under section 995 is authorized to review a prior order compelling the magistrate to reinstate the complaint, and may do so without violating the California Constitution.

On the second issue, we conclude, again contrary to the Court of Appeal's determination, that the superior court may set aside an information under section 995 when the magistrate erroneously and prejudicially has failed to consider whether to dismiss a complaint in furtherance of justice under section 1385. Notwithstanding the Court of Appeal's assertion, the circumstance that a defendant has no right formally to move for dismissal under section 1385 does not negate the defendant's substantial right to the magistrate's consideration whether to exercise a power explicitly granted to the magistrate by that statute, nor does it mean that a defendant has not been denied a substantial right if the magistrate erroneously and prejudicially fails to consider whether to exercise that power.

Applying these determinations to the circumstances of the present case, we conclude that in view of the apparently unusual circumstances here disclosed, the Court of Appeal erred in reversing the order of the superior court setting aside an information under section 995. Accordingly, we reverse the judgment of the Court of Appeal and remand the cause to the Court of Appeal with directions to affirm the order in question, a disposition that will allow the magistrate to consider on remand whether to dismiss the complaint in furtherance of justice under section 1385.

I

The criminal action before us involves a prosecution under Health and Safety Code section 11360, which proscribes the sale of marijuana and makes the offense punishable as a felony.

At the General Election held on November 5, 1996, the electors approved an initiative statute designated on the ballot as Proposition 215 and entitled "Medical Use of Marijuana." In pertinent part, Proposition 215 added section 11362.5 to the Health and Safety Code, a provision called the "Compassionate Use Act of 1996." (Prop. 215, § 1, as approved by electors, Gen. Elec. (Nov. 5, 1996) adding Health & Saf.Code, § 11362.5, subd. (a).) Subdivision (d) of Health and Safety Code section 11362.5 (Health and Safety Code section 11362.5(d)) provides that Health and Safety Code section 11357, which proscribes the possession of marijuana and makes the offense punishable as either a misdemeanor or a felony, and Health and Safety Code section 11358, which proscribes cultivation of marijuana and makes the offense punishable as a felony, "shall not apply to a patient, or to a patient's primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician." Health and Safety Code section 11362.5(d), however, does not refer to any other provision relating to marijuana — including Health and Safety Code section 11360, proscribing the sale of marijuana.

On May 17, 2000, a complaint was filed in the San Diego County Superior Court, charging defendants Carolyn Konow, Steven Rohrer, Amy Toosley, Daniel O'Neil, and Howard Rogers with three counts of sale of marijuana, in violation of Health and Safety Code section 11360, based on three separate transactions occurring on March 30, April 4, and April 7, 2000. Each defendant pleaded not guilty.

In papers filed in connection with the ensuing preliminary examination, the People contended that probable cause existed to believe that each defendant had sold marijuana as charged. The People also maintained that Proposition 215 did not legalize the sale of marijuana to qualified patients or primary caregivers, citing People ex rel. Lungren v. Peron (1997) 59 Cal.App.4th 1383, 70 Cal.Rptr.2d 20 (Peron) (which concluded that Proposition 215 did not create, for such persons, any exception to Health and Safety Code section 11360's proscription against the sale of marijuana), and People v. Trippet (1997) 56 Cal.App.4th 1532, 66 Cal.Rptr.2d 559 (Trippet) (which similarly concluded that Proposition 215 did not create, for such persons, any exception to Health and Safety Code section 11360's related proscription against the transportation of marijuana).

In opposition, defendants claimed that Proposition 215 should be construed to legalize the sale of marijuana to qualified patients and primary caregivers by creating an exception to Health and Safety Code section 11360. In support of their contention, defendants relied upon dictum in Peron, which stated that a qualified primary caregiver would not violate Health and Safety Code section 11360's proscription against the sale of marijuana by "receiving bona fide reimbursement for [the] actual expense of cultivating and furnishing" the substance to a qualified patient (Peron, supra, 59 Cal.App.4th at p. 1399,70 Cal.Rptr.2d 20), and dictum in Trippet, which stated that a qualified primary caregiver would not violate Health and Safety Code section 11360's proscription against transportation of marijuana by "carrying otherwise legally cultivated and possessed marijuana down a hallway to the ... room" of a "dying cancer patient[]" (Trippet, supra, 56 Cal.App.4th at p. 1550,66 Cal.Rptr.2d 559). In addition, defendants claimed that if, notwithstanding Proposition 215, Health and Safety Code section 11360 continued to proscribe the sale of marijuana to qualified patients and primary caregivers, the provision would be invalid as to such persons under the due process clause of the Fourteenth Amendment to the United States Constitution because it would be unduly vague and ambiguous and hence would deny fair notice of its proscription, and also would be invalid as to such persons under the equal protection clause of the Fourteenth Amendment because it would impermissibly expose individuals to prosecution depending solely upon the locality in which they found themselves. Finally, defendants stated their intent to raise, as "affirmative defense[s]" (§ 866, subd. (a)), what they referred to as "official authorization" and "[r]easonable reliance upon advice of counsel." Further, defendant Toosley and defendant Rogers each claimed separately that there was insufficient evidence to establish probable cause to believe that he or she was guilty of any of the sales of marijuana charged.

The preliminary examination was conducted by Judge William D. Mudd, a superior court judge sitting as a magistrate. The evidence presented, and the matters judicially noticed, disclosed the following circumstances:

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