People v. Superior Court (Brodie)

Decision Date14 May 1975
Docket NumberCr. 26411
CourtCalifornia Court of Appeals Court of Appeals
PartiesThe PEOPLE, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent; Terry James BRODIE, Real Party in Interest. The PEOPLE, Plaintiff and Appellant, v. Terry James BRODIE, Defendant and Respondent. Civ. 45299,

Joseph P. Busch, Dist. Atty., Harry B. Sondheim and Daniel L. Bershin, Deputy Dist. Attys., for petitioner, plaintiff and appellant.

No appearance by respondent Superior Court.

Johnnie L. Cochran, Jr., and Carl E. Jones, Los Angeles, for defendant, respondent and real party in interest Brodie.

Richard S. Buckley, Public Defender, Harold E. Shabo and Michael Rothschild, Deputy Public Defenders, as amicus curiae.

FILES, Presiding Justice.

In this opinion we discuss the interpretation of Penal Code section 190.2, subdivision (b)(4), prescribing the death penalty where 'The defendant has in this or in any prior proceeding been convicted of more than one offense of murder of the first or second degree.' Before reaching that issue it is necessary to determine whether the superior court's pretrial ruling adverse to the People is reviewable by appeal or by prerogative writ.

By information, Terry James Brodie was charged in count I with the murder of Thomas, and in count II with the murder of Luckey. Each count alleged, as 'a special circumstance' enumerated in section 190.2, subdivision (b)(4), the murder of the alleged victim named in the other count. 1 Each count also alleged, as 'a special circumstance' that on November 5, 1969, defendant had been convicted in Kansas of the murder of De Lapp. Upon motion of the defendant, the superior court made a minute order on October 4, 1974, granting defendant's motion to strike from the information the allegation of 'the alleged Kansas City (sic.) prior.'

The stated basis of the trial court's ruling was its interpretation of the statute as being applicable only where the defendant had been convicted of more than one murder in the same proceeding. Since the Kansas proceeding resulted in a conviction of only one murder, in the trial court's view this was not a 'special circumstance' which would require imposition of the death penalty if defendant were convicted of only one of the two murders charged in the pending information.

The people filed a notice of appeal from the minute order of October 4, 1974, and then filed a petition in this court for a writ of mandate to compel the superior court to vacate that order. The petition alleged that no matter whether the order was appealable, the remedy by appeal was not speedy or adequate and urged the importance of resolving the issue as soon as practicable, and prior to the trial of the pending charges.

On December 26, 1974, we issued an alternative writ of mandate directing the trial court either to vacate its order of October 4 or show cause why a peremptory writ should not issue. This issuance of the alternative writ reflected our decision at that time that the remedy by appeal was inadequate. (See Morse v. Superior Court (1974) 13 Cal.3d 149, 155, 118 Cal.Rptr. 14, 529 P.2d 46.) We decided that no matter whether the order was reviewable by appeal, the writ proceeding should be used because of the need for a prompt and definitive interpretation of a new statute for this case and for a substantial number of other cases which are pending or will be commenced in the near future. (Cf. Sledge v. Superior Court (1974) 11 Cal.3d 70, 75, fn. 5, 113 Cal.Rptr. 28, 520 P.2d 412.)

When the writ proceeding came on for oral argument, the parties stipulated that all papers on file in either the appeal or the writ proceeding might be considered in both proceedings. Both the appeal and the writ application were then submitted upon the papers on file.

The Public Defender of Loa Angeles County has been granted leave to appear as amicus curiae for the purpose of arguing his contention that the law does not permit any pretrial appellate review of the October 4, 1974, order, either by appeal or by writ. The argument is that the right of appeal is statutory, the appeal statute (Pen.Code, § 1238) does not specify this kind of order as appealable, and the legislative limitation upon appealability should not be evaded by the use of a prerogative writ, citing People v. Superior Court (Howard) (1968) 69 Cal.2d 491, 72 Cal.Rptr. 330, 446 P.2d 138.

In the Howard case, the trial judge had dismissed an information on his own motion after the jury had returned a verdict of guilty. The People sought a writ of mandate to set aside the trial court's order or dismissal. In denying the People's application for relief the Supreme Court said: 'To permit the People to resort to an extroardinary 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.' (69 Cal.2d at p. 499, 72 Cal.Rptr. at p. 336, 446 P.2d at p. 144.)

After analyzing the prior decisional law, the Howard opinion stated:

'. . . Appellate review at the request of the People necessarily imposes substantial burdens on an accused, and the extent to which such burdens should be imposed to review claimed errors involves a delicate balancing of the competing considerations of preventing harassment of the accused as against correcting possible errors.

'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.' (69 Cal.2d at p. 501, 72 Cal.Rptr. at p. 332, 446 P.2d at p. 145.)

Immediately following that passage the court disapproved two Court of Appeal decisions 'which permitted the issuance of mandate where there was a danger of retrial.'

One of the decisions analyzed in Howard is People v. Superior Court (King) (1967) 249 Cal.App.2d 714, 57 Cal.Rptr. 892, where the superior court had dismissed an information on its own motion because it believed that the evidence of guilt in the preliminary transcript, though conflicting, did not justify prosecution. Upon the People's petition, the Court of Appeal granted a writ ordering the superior court to set aside its dismissal. In the Howard opinion, the Supreme Court expressed disagreement with the King court's narrow view of the trial judge's discretion, but did not disapprove the use of the writ of mandate to set aside a pretrial dismissal. (69 Cal.2d at pp. 501 and 503--504, 72 Cal.Rptr. 330, 446 P.2d 138.)

Both the language of the Howard opinion 2 and the authority of subsequent decisions have established that the People are not denied resort to an extraordinary writ under all circumstances. The Howard case is different from the present case in two important respects: First, in Howard, the order of dismissal was made after the case had been tried; here the order to be reviewed was made before jeopardy had attached. Second, the ruling in Howard involved the issue of guilt, the trial judge having made his order of dismissal because he felt the defendant was entitled to an acquittal; here the order involved the trial court's interpretation of a statute, unrelated to any opinion as to guilt or innocence.

An example of a proper use of mandate is found in People v. Superior Court (Edmonds) (1971) 4 Cal.3d 605, 94 Cal.Rptr. 250, 483 P.2d 1202 which arose because a trial court had allowed the defendant in a criminal case to renew at trial a pretrial motion to suppress evidence under Penal Code section 1538.5. The Supreme Court held that the trial court had no jurisdiction to entertain such a motion at trial, and granted a writ to require the trial court to set aside its order. In distinguishing the Howard case, the Supreme Court pointed out that, since the order under review had been made at the close of a court trial but before judgment, no danger of further trial or retrial would exist if the order granting the motion were set aside.

Assuming that the ruling now before us was not appealable, 3 we regard the Edmonds decision as an apt analogy for use of the writ procedure here. Penal Code sections 190 and 190.1 contemplate that, in an information charging murder, the...

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