People v. Municipal Court (White)

• Decision Date: 11 January 1979
• Citation: 151 Cal.Rptr. 861,88 Cal.App.3d 206
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. MUNICIPAL COURT OF the CITY AND COUNTY OF SAN FRANCISCO, Defendant; Arthur B. WHITE, Real Party in Interest and Appellant. Civ. 43140.
• Court: California Court of Appeals Court of Appeals

Page 861

151 Cal.Rptr. 861

88 Cal.App.3d 206

PEOPLE of the State of California, Plaintiff and Respondent, v. MUNICIPAL COURT OF the CITY AND COUNTY OF SAN FRANCISCO, Defendant;

Arthur B. WHITE, Real Party in Interest and Appellant.

Civ. 43140.

Court of Appeal, First District, Division 2, California.

Jan. 11, 1979.

The Community Defender, San Francisco, Thomas E. Bruyneel, Chief Counsel, V. Roy Lefcourt, San Francisco, for real party in interest and appellant.

Jack R. Winkler, Chief Asst. Atty. Gen.-Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., Derald E. Granberg, Stan M. Helfman, Deputy Attys. Gen., San Francisco, for respondent.

TAYLOR, Presiding Justice.

Arthur B. White, real party in interest, appeals ¹ from an order of the superior court granting the People's writ of mandamus reinstating White's prior felony conviction and directing the municipal court to vacate its order reducing Count II, a felony charge, to a misdemeanor. White contends that the superior court erred in issuing the peremptory writ as: 1) he was charged in Count II with a felony/misdemeanor "wobbler," ² pursuant to Penal Code section 12025, subdivision (b), and, therefore, the municipal court, acting as a magistrate, had authority, pursuant to Penal Code section 17, subdivision (b) (5), to deem the offense a misdemeanor; and, in the alternative, that 2) if he was charged with a felony under Penal Code section 12025, subdivision (b), the magistrate had authority either pursuant to Penal Code section 17, subdivision (b)(5), to strike the prior conviction, or pursuant to Penal Code section 1385, to dismiss the prior conviction, rendering the charge a misdemeanor. For the reasons set forth below, we have concluded that the order granting the writ must be affirmed.

The record reveals the following pertinent facts: About May 2, 1977, a complaint was filed in municipal court charging White as follows: Count I with ownership and possession of a concealable firearm after having previously been convicted of a felony, a felony or misdemeanor (Pen.Code, § 12021); in Count II with carrying a concealed firearm after having previously been convicted of a felony ³ (Pen.Code, § 12025, subd. (b)); and in Count III with carrying a loaded firearm in a public place, a misdemeanor (Pen.Code, § 12031).

In May 1977, White was arraigned before a magistrate and preliminary hearing was set for May 17, 1977. At the preliminary hearing, the magistrate, the Honorable Ollie Marie-Victoire, reduced Counts I and II to misdemeanors. The district attorney contended that the magistrate did not have the authority to reduce Count II to a misdemeanor. The matter was continued to May 19, 1977. On that date, the magistrate struck the prior felony conviction alleged in Count II, and stated that she would allow her previous order reducing Counts I and II to misdemeanors to stand.

On June 7, 1977, the district attorney filed the instant petition for a writ, challenging the magistrate's order of May 19, 1977, which reduced Count II to a misdemeanor and struck the prior felony. The writ was granted and the magistrate directed to vacate her order reducing Count II, reinstate the prior felony and to hold White to answer on all three counts which were ordered transferred to the superior court.

We turn first to White's contention that he was charged by Count II with a felony/misdemeanor "wobbler," pursuant to Penal Code section 12025 and, therefore, the magistrate had authority to deem the offense a misdemeanor, pursuant to Penal Code section 17, subdivision (b)(5). Penal Code section 17, subdivision (b)(5) provides: "When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances: . . .

"(5) When, at or before the preliminary examination or prior to filing an order pursuant to Section 872, The magistrate determines that the offense is a misdemeanor, in which event the case shall proceed as if the defendant had been arraigned on a misdemeanor complaint." (Emphasis added.)

Thus, by its terms, Penal Code section 17, subdivision (b)(5) empowers a magistrate to hold a defendant to answer to a misdemeanor where the complaint charges a public offense which may be either a felony or misdemeanor.

However, we cannot agree with White's argument that Penal Code section 12025, subdivision (b), provides "wobbler" status to those carrying a concealed weapon who have previously been convicted of a crime against the person, property, or a narcotics or dangerous drug violation. ⁴ A careful reading of the legislative history of section 12025, subdivision (b), is necessary to determine when "wobbler" status is provided. When first introduced on March 31, 1975, Legislative Counsel explained the bill (A.B. 1333) as follows: "Under existing law any unlicensed person who carries a concealed pistol, revolver or other concealable firearm upon his person or in a vehicle under his direction and control is guilty of a misdemeanor, and If he has been convicted previously of any felony or of any crime made punishable by the Dangerous Weapons Control Law, ( ⁵ ) Is guilty of a felony. (P) This bill would make such unlicensed concealed carrying of such a firearm a felony in all cases of carrying a concealed weapon upon the person." (Emphasis added.) Clearly, the bill did not provide for "wobbler" status for any violator. Additionally, any violator with a prior felony conviction would be guilty of a felony. A violator without a prior felony is a misdemeanant.

Assembly Bill 1333 was then amended in the Assembly on May 8, 1975. As amended, the bill was explained as follows: "Under existing law any unlicensed person who carries a concealed pistol, revolver or other concealable firearm upon his person or in a vehicle under his direction and control is guilty of a misdemeanor, and If he has been convicted previously of any felony or of any crime made punishable by the Dangerous Weapons Control Law, Is guilty of a felony. (P) This bill would make such unlicensed concealed carrying of such firearm Punishable alternatively as a felony or misdemeanor in all cases of carrying a concealed weapon upon the person Where there was no such previous conviction " (emphasis added). The bill thus accorded "wobbler" status to those violators who did not have any prior felony convictions and who did not have any prior convictions under The Dangerous Weapons' Control Law. Violators with previous felony convictions were still guilty of a felony. The identical analysis followed the Assembly's June 11, 1975 amendment to the bill.

The bill was again amended on September 11, 1975. As finally amended to its present version, ⁶ the bill was summarized as follows by the Legislative Counsel: "Under existing law any unlicensed person who carries a concealed pistol, revolver or other concealable firearm upon his person or in a vehicle under his direction and control is guilty of a misdemeanor, and If he has been convicted previously of any felony or of any crime made punishable by the Dangerous Weapons Control Law, Is guilty of a felony.

"This bill would make such unlicensed concealed carrying of such a firearm punishable as a misdemeanor except for persons convicted of a crime against the person, property, or a narcotics or dangerous drug violation which Shall be punishable alternatively as a felony or misdemeanor in all cases of carrying a concealed weapon upon the person Where there was not such previous conviction." (Emphasis added.)

Clearly, throughout the amendments to the bill, there was one constant: violators with prior felony convictions are guilty of a felony. Accordingly, we conclude that read logically, Penal Code section 12025, subdivision (b), established three categories of offenders: 1) violators who have previously been convicted of any felony or crime made punishable by The Dangerous Weapons' Control Law are guilty of a felony; 2) violators who have not previously been convicted of a felony or a crime made punishable by The Dangerous Weapons' Control Law, but who carried the concealed weapon in connection with the perpetration of a crime against the person, property, or a narcotics or dangerous drug violation are guilty of a "wobbler"; 3) those violators who have not previously been convicted of a felony or a crime made punishable by The Dangerous Weapons' Control Law and who were not carrying the concealed weapon in connection with the perpetration of a crime against the person, property, or a narcotics or dangerous drug violation are misdemeanants.

In the instant case, Count II charged White with a violation of section 12025, subdivision (b), of the first category, i. e., carrying a concealed weapon by one who has previously been convicted of a felony. Count II, therefore, charged White with a felony, not a "wobbler."

We turn next to White's contention that even if he was charged with a felony by Count II, the magistrate had the power to strike the prior conviction pursuant to Penal Code section 17, subdivision (b)(5). This contention is without merit.

The authority...