People v. Moulton

• Decision Date: 07 April 1982
• Docket Number: Cr.A
• Citation: 131 Cal.App.3d Supp. 10,182 Cal.Rptr. 761
• Court: California Superior Court
• Parties: 131 Cal.App.3d Supp. 10 PEOPLE, Plaintiff and Appellant, v. David J. MOULTON, Defendant and Respondent. 19077. Appellate Department, Superior Court, Los Angeles County, California

Page 761

182 Cal.Rptr. 761

131 Cal.App.3d Supp. 10

PEOPLE, Plaintiff and Appellant, v. David J. MOULTON, Defendant and Respondent.

Cr.A.19077.

Appellate Department, Superior Court, Los Angeles County, California.

April 7, 1982.

Ira Reiner, City Atty., Jack L. Brown, Ray L. Hart and Greg Wolff, Deputy City Attys., for plaintiff and appellant.

Wilbur F. Littlefield, Public Defender, Dennis A. Fischer, Ilona Peltyn and Melissa Hill, Deputy Public Defenders, for defendant and respondent.

FOSTER, Acting Presiding Judge.

By a misdemeanor complaint, David J. Moulton was charged with violating Penal Code section 487, subdivision 1 (grand theft). On defendant's motion, pursuant to sections 1377 and 1378 of the Penal Code, ¹ the trial judge ordered all proceedings stayed and defendant discharged. The People appeal from the order.

When the case was initially called for trial on February 11, 1981, defendant moved "for civil compromise pursuant to 1377-1378." Although we have not been provided with a transcript of the proceedings on that date, from remarks made by the trial judge during a later hearing on the same motion, it appears that Ms. Peltyn, counsel for defendant, advised the court that "Miss Dultz ² had been paid and did wish to drop the charges against Mr. Moulton." Mr. Horowitz, the deputy city attorney prosecuting the action, was not in the courtroom, and the city attorney's file did not disclose the status of the case. A different deputy (Ms. De La Garza) was summoned and told the court that Miss Dultz had agreed to testify if called. In the presence of the judge ³ Ms. Peltyn then telephoned Miss Dultz. Statements made by Ms. Peltyn in the course of the conversation appeared to the judge to bear out the willingness of Miss Dultz to drop the charges. A subsequent attempt to recontact Miss Dultz for a conference call, in which she, Ms. Peltyn, the deputy city attorney, and the judge might participate, was unsuccessful. The judge continued the hearing to February 23, 1981, and advised Ms. Peltyn that she should have Miss Dultz either come into court or give a declaration under penalty of perjury that she had received satisfaction and was agreeable to dropping the charge.

At the continued hearing, counsel for defendant presented to the court a letter on the stationery of the public defender's office, signed under penalty of perjury by Linda Dultz, acknowledging that Miss Dultz had received full satisfaction and wished to drop all charges against Moulton. The deputy city attorney objected on two grounds. First, he argued that because the charge against Moulton was an offense punishable as either a felony or a misdemeanor, commonly known as a "wobbler," ⁴ of necessity it is one committed with "an intent to commit a felony" and therefore excluded by subdivision 3 of section 1377 from the class of offenses subject to civil compromise. Secondly, he urged that since Miss Dultz had not appeared in court, but had only sent a letter, the procedural requirements of section 1378 had not been met.

Responding to the second ground of objection, the trial judge recited the history of events that had occurred at the prior hearing, commenting that "it would not be fair to bring her into court if she would be agreeable to drop the charges and just be agreeable to say it .... I think the letter in the context of the history is adequate to meet that requirement of the statute, that the victim has indicated the satisfaction and the desire not to proceed against the defendant."

As to the former ground, the judge stated: "... where they [the People] have filed the case as a misdemeanor, they have by their action taken out of the case the question of whether it was done with felonious intent. They have said this is a crime in which the amount of money was by happenstance." Subsequently, when the deputy city attorney sought to argue "the factual picture for the record," ⁵ the trial judge interrupted him, commenting "... I don't want to go into the underlying facts. I think there is only one relevant underlying fact, and that is that this is a case which came into this courtroom as a misdemeanor filing."

On appeal the People renew their contention made in the trial court that an offense which by definition is punishable alternatively as a felony or misdemeanor is conclusively established as one committed "with an intent to commit a felony." In response, defendant points to section 17 of the Penal Code which provides that a crime punishable as either a felony or a misdemeanor "... is a misdemeanor for all purposes ... [w]hen the prosecuting attorney files in a court having jurisdiction over misdemeanor offenses a complaint specifying that the offense is a misdemeanor ...." (§ 17, subd. (b)(4).) We believe that neither the fact that the charge might be filed as a felony or a misdemeanor nor the prosecutor's decision to file a misdemeanor complaint controls the decision of whether the offense is excluded from civil compromise as an offense committed with felonious intent.

In People v. Strub (1975) 49 Cal.App.3d Supp. 1, 122 Cal.Rptr. 374, defendant was charged by a felony complaint with a violation of Welfare and Institutions Code section 11483, an offense punishable as either a felony or a misdemeanor. At the preliminary hearing, the trial judge advised the defendant that he would allow a civil compromise if defendant would make restitution. The judge thereupon reduced the charge to a misdemeanor and continued the hearing to enable defendant to raise the funds. On appeal, an order dismissing the action was reversed by the Appellate Department of the Superior Court for the County of San Mateo, the court stating:

"Penal Code section 1377, subdivision 3, provides that an act which constitutes a misdemeanor may nevertheless not be compromised if that act was committed 'with an intent to commit a felony.' Welfare and Institutions Code section 11483 was clearly charged as a felony and, although reduction of that charge pursuant to Penal Code section 17 may have a direct impact on the sentence to be imposed on conviction, it arguably has no impact whatsoever upon the intent with which the act was committed. Since the act herein complained of was in fact a felony, the intent to commit that act may or may not have been felonious. If it were felonious, Penal Code section 1377, subdivision 3, would appear to bar any compromise of the offense. In any case, the question is one of fact, and the compromise of the offense as permitted by the trial court clearly denied the People of their right to a trial on that critical preliminary issue." (49 Cal.App.3d Supp., at p. 4, 122 Cal.Rptr. 374.)

We agree with the court in Strub that the prosecutor's decision to file a charge as a misdemeanor has little if any relationship to the question of whether defendant in the commission of a crime intended "to commit a felony." Many factors, such as the age of the defendant, his prior criminal record, problems of proof and office filing policies may enter into such a decision.

We agree also that the issue of whether defendant had such intention is a factual one to be resolved at a hearing in which both the People and the defendant have a right to present evidence. Thus, in the present case, the trial judge's refusal to permit inquiry into "the underlying facts" foreclosed such a hearing and was error.

A more difficult question, however, is the test the trial judge should apply in determining if an offense was committed "with an intent to commit a felony." Our research discloses that the quoted phrase has appeared without change in the California civil compromise statutes and their predecessor New York statutes for nearly 170 years and long antedates the more precise distinctions between felonies and misdemeanors appearing in section 17 of the California Penal Code. In its original application, the phrase simply connoted a distinction between minor offenses, as to which the policy of the law favored civil compromise, and more serious ones, the compromising of which would leave the purposes of the criminal law unvindicated.

All the statutes authorizing civil compromise of criminal actions ⁶ trace their origins to a New York statute in effect in 1813, providing:

"That in all cases where a person shall, on the complaint of another, be bound by recognisance to appear, or shall, for want of surety, be committed, or shall be indicted for an assault and battery, or other misdemeanor, to the injury and damage of the party complaining, and not charged to have been done riotously or with intent to commit a felony, or not being an infamous crime, and for which there shall also be a remedy by civil action, if the party complaining shall appear before the magistrate who may have taken the recognisance, or made the commitment, or before the court in which the indictment shall be, and acknowledge to have received satisfaction for such injury and damage, it shall be lawful for the magistrate in his discretion to discharge the recognisance, &c. or for the court also in their discretion, to order a nolle prosequi to be entered on the indictment," (1 N.Y.R.L. (1813) p. 499, § 19.)

The phrase "with intent to commit a felony" was included in the statute when it was recast as section's 663 to 666 of the New York Code of Criminal Procedure in 1849. The wording of these sections, in turn, was adopted almost verbatim as sections 724-727 of the California Criminal Practice Act of 1850 (Stats. 1850, p. 330) and as sections 675-678 of the Criminal Practice Act of 1851. (Stats. 1851, p. 288.) Again, when the Penal Code was enacted in 1872, these sections from the practice act were included as part of the Penal Code, with the change being a renumbering as the present sections 1377-1379. In none of the available legislative materials is there any indication of a precise meaning for the phrase "with intent to commit a felony" which has remained unchanged throughout all enactments...