People v. Municipal Court (Gelardi)

• Decision Date: 08 September 1978
• Citation: 84 Cal.App.3d 692,149 Cal.Rptr. 30
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Appellant, v. The MUNICIPAL COURT FOR the CENTRAL JUDICIAL DISTRICT OF MARIN COUNTY, Defendant and Respondent; Robert Michael GELARDI, Real Party in Interest. Civ. 41921.

Page 30

149 Cal.Rptr. 30

84 Cal.App.3d 692

PEOPLE of the State of California, Plaintiff and Appellant, v. The MUNICIPAL COURT FOR the CENTRAL JUDICIAL DISTRICT OF MARIN COUNTY, Defendant and Respondent;

Robert Michael GELARDI, Real Party in Interest.

Civ. 41921.

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

Sept. 8, 1978.

As Modified Sept. 18, 1978.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Timothy A. Reardon, Don Jacobson, Deputy Attys. Gen., San Francisco, for plaintiff and appellant.

David Childers, San Rafael, for real party in interest.

ELKINGTON, Associate Justice.

Judges of the Municipal Court for the Central Judicial District of Marin County (hereafter sometimes Municipal Court), or some of them, have developed and sometimes engaged in a practice, in respect of persons awaiting trial for misdemeanor offenses, which is perhaps best exemplified by the following selected portions of the court's minute orders.

"Pursuant to pre-trial conference Court ordered case to be continued 6 months . . . over the objection by the People. . . . Case continued . . . for . . . possible dismissal."

"People feel the defendant should be on probation and the People are prepared to go to jury trial. Court ordered case continued to 2/14/77 (five months later) at 2:00 P.M. for possible dismissal if no further violation by the defendant."

"Court indicates that pursuant to the pre-trial conference discussions he will continue this case for one year for possible dismissal if defendant . . . is not involved in any other illegal acts. Case continued to 1/11/78 at 1:30 p. m. for possible dismissal. . . . Mr. Courteau (the prosecutor) states . . . that the People are not a part of the disposition indicated and disagreed with the same at the pre-trial conference and feel it an abuse of the court's discretion; . . ."

"Matter having been discussed in chambers by court and counsel, court states he is prepared to continue the case six months for dismissal on condition the defendant does not contact the victim, . . ., and conduct himself in a law-abiding fashion throughout the probationary period. Time waived. People state they would like the record to reflect their objection to this disposition. Case continued to 2/23/77 at 1:30 p. m. for possible dismissal."

Robert Michael Gelardi, the real party in interest of this appeal, was charged in the Municipal Court with the misdemeanor violation of Penal Code section 417, to wit, brandishing a weapon. Following its above described practice and over the People's objection the court continued the case six months for "possible dismissal." Thereafter, before dismissal and within the six-month period, the People sought to nullify the court's "illegal action" by petition to the superior court "for a Writ of Prohibition and/or Mandate. . . ."

The superior court ordered the writ application denied, apparently on the theory that the People's only remedy lay in an appeal, under Penal Code section 1466, subdivision 1(a), from the contemplated order of dismissal, when and if entered. The People have appealed from the order denying the extraordinary writ.

It is of significance, as will hereafter appear, (1) that the order of "continuance for dismissal" was made before the court had entered upon A trial of the charge against Gelardi, and (2) that such an order of continuance is not an Appealable order. (See Pen.Code, § 1466, subd. 1.)

As he did in the superior court, Gelardi here contends, relying on People v. Superior Court (Howard), 69 Cal.2d 491, 72 Cal.Rptr. 330, 446 P.2d 138, that the writ of prohibition or mandate was not legally available to the People for review of the Municipal Court's order.

In People v. Superior Court (Howard), supra, a jury had found Howard guilty of robbery. Thereafter the trial court, finding the evidence of guilt to be of little weight, dismissed the information in the "interests of justice" as was, at least arguably, permitted by Penal Code section 1385. The People sought from the high court a writ of mandate compelling the trial court to vacate its order of dismissal. The application was denied, and the court's reasons therefor may be summarized in this manner:

"The Legislature has determined that except under certain limited circumstances the People shall have no right of appeal in criminal cases." (69 Cal.2d, p. 497, 72 Cal.Rptr., p. 335, 446 P.2d, p. 143.) "The restriction on the People's right to appeal is not merely a procedural limitation allocating appellate review between direct appeals and extraordinary writs but is a substantive limitation on review of trial court determinations in criminal trials." (Id., p. 498, 72 Cal.Rptr., p. 335, 446 P.2d, p. 143.) "To permit the People to resort to an extraordinary writ to review where there is no right to appeal would be to give the People the very appeal which the Legislature has denied to them." (Id., p. 499, 72 Cal.Rptr., p. 336, 446 P.2d, p. 144.) "Assuming that in some cases the matter may be of such importance that mandate may be available to the People to review determinations where appeal does not lie, we are satisfied that the proper balancing of these considerations prohibits review by mandate at the request of the People where, as here, there is a danger of further trial or retrial. Such a rule will give meaningful effect to the legislative policy limiting review and the burdens on the defendant. (Certain earlier cases) which permitted the issuance of mandate where there was a danger of retrial, are disapproved." (Id., p. 501, 72 Cal.Rptr., p. 337, 446 P.2d, p. 145.)

It is worthy of emphasis here that People v. Superior Court (Howard) forbade proceedings by the People for extraordinary writs Only where "there is a danger of further trial or retrial." In the case at bench there had been neither trial nor jeopardy, nor would invalidation of the Municipal Court's order result in "further trial or retrial."

People v. Superior Court (Edmonds), 4 Cal.3d 605, 609, 94 Cal.Rptr. 250, 252, 483 P.2d 1202, 1204, thereafter held in a case where there was no danger of "further trial or retrial," that "mandate (on request of the People) would be appropriate under the principles set forth in People v. Superior Court (Howard), . . ."

We find further elaboration of the rule of People v. Superior Court (Howard) in decisions of the Court of Appeal.

People v. Superior Court (Lozano), 69 Cal.App.3d 57, 62, 137 Cal.Rptr. 767, 769. "Moreover, in our view People v. Superior Court (Howard) (1968) 69 Cal.2d 491, 72 Cal.Rptr. 330, 446 P.2d 138 . . . does not foreclose to the People review by writ in all cases in which there was no remedy by appeal. . . . (Since) in the instant case the order was made before there was any trial and therefore jeopardy had not attached," an extraordinary writ was properly granted.

People v. Superior Court (Brodie), 48 Cal.App.3d 195, 121 Cal.Rptr. 732. Here the reviewing court, on motion of the People and before trial, granted a writ of mandate requiring the superior court to set aside a pretrial order striking "an allegation of special circumstance" from an information charging murder. The court said (pp. 200-201, 121 Cal.Rptr. p. 735): "When a trial judge strikes out such an allegation solely because of a misinterpretation of the statute, its order is in excess of its jurisdiction. (See Howard, supra, 69 Cal.2d at p. 500, 72 Cal.Rptr. 330, 446 P.2d 138.) In the case at bench, considering the gravity of the charge, the importance of the issue and the absence of any showing of prejudice by the delay involved in the review procedure, a weighing of the factors referred to in the Howard opinion does not preclude review by this mandate proceeding."

People v. Superior Court (Montano), 26 Cal.App.3d 668, 671, 102 Cal.Rptr. 925, 926. The court granted mandate compelling the superior court to set aside a pretrial order of dismissal which order, it concluded, would " 'stultify the statutory scheme . . ..' " Finding the case "unlike Howard," and the dismissal to be "beyond the court's (statutory) power," it stated that "(s) ince there is no danger of (further) trial or retrial, the writ of mandate may properly issue to correct an abuse of discretion . . . ."

People v. Superior Court (Biggs), 19 Cal.App.3d 522, 97 Cal.Rptr. 118. The People's application for prohibition to set aside an erroneous dismissal was denied, but only because the dismissal was ordered by the superior court After commencement of trial of the action. The court said (p. 535): "(A)s we view People v. Superior Court (Howard), supra, the absence of a statutory prosecution appeal expresses a legislative policy against exposing the accused to a possible retrial, even though the policy transmutes an erroneous trial court ruling into an erroneous dismissal. This court is without power to issue the writ of prohibition because the writ would expose the accused to a possible retrial."

People v. Thompson, 10 Cal.App.3d 129, 88 Cal.Rptr. 753. Finding no danger of "a further trial or retrial" the appellate court, after a thorough analysis of People v. Superior Court (Howard), "let a peremptory writ of mandate issue directing the (superior court) to annul its order . . . which set aside the guilty plea" without statutory sanction. (P. 138, 88 Cal.Rptr. p. 759.)

Notable also are the several judicial comments that extraordinary writs will more readily be granted on the People's request where, as here: there is no prosecutorial "harassment" of the accused (see People v. Thompson,supra, 10 Cal.App.3d 129, 137, 88 Cal.Rptr. 753); the issue does not "involve any question of guilt or innocence" (People v. Superior Court (Lozano), supra, 69 Cal.App.3d 57, 62, 137 Cal.Rptr. 767, 769); and the case is of "significant public interest" (People v. Superior Court (Lozano), supra, 69 Cal.App.3d, p. 62, 137 Cal.Rptr. 767; People v. Superior Court (Montano), supra, 26...