People v. Superior Court (Feinstein)

• Citation: 29 Cal.App.4th 323,34 Cal.Rptr.2d 503
• Decision Date: 18 October 1994
• Docket Number: No. B085370,B085370
• Court: California Court of Appeals
• Parties: The PEOPLE, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent, Stanley Samuel FEINSTEIN, Real Party in Interest.

Page 503

34 Cal.Rptr.2d 503

29 Cal.App.4th 323

The PEOPLE, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent, Stanley Samuel FEINSTEIN, Real Party in Interest.

No. B085370.

Court of Appeal, Second District, Division 4, California.

Oct. 18, 1994.

As Modified Nov. 15, 1994.

Gil Garcetti, Dist. Atty., Brent Riggs and Brentford J. Ferreira, Deputy Dist. Attys., for petitioner.

No appearance, for respondent.

Philip D. Israels, Sherman Oaks, and David W. Pies, San Francisco, for real party in interest.

EPSTEIN, Acting Presiding Justice.

A magistrate purported to reduce two felony charges to misdemeanors because she believed the evidence presented at the preliminary hearing was insufficient to hold the defendant to answer felony charges. Neither offense was a felony-misdemeanor (wobbler) as to which the reduced crime was a misdemeanor. We conclude the magistrate was without power to reduce the offenses to these misdemeanors, and that her doing so amounted to a dismissal of the felony charges. The district attorney brought a Penal Code section 871.5 motion, but the superior court declined to consider it, reasoning that the magistrate's order did not result in a dismissal of charges, a requisite of the motion. We conclude that a dismissal did occur, and hence that the superior court should review the magistrate's order pursuant to Penal Code section 871.5. We therefore shall issue a peremptory writ directing it to do so. We express no opinion on the merits of the dismissal the trial court is to review.

FACTUAL AND PROCEDURAL SUMMARY

At the felony preliminary hearing, held in May 1994, Vicki D. testified substantially as follows. She is an attorney, and she went to the State Building in Van Nuys to appear at a workers' compensation proceeding scheduled to be held in that facility. Once there, she met defendant Stanley Samuel Feinstein (defendant), a workers' compensation judge, in the lobby. Although Ms. D. only knew him slightly, defendant invited her to his chambers for the stated purpose of giving her information about an upcoming seminar. After a brief discussion of the seminar, Ms. D. turned to leave the room. Defendant asked her to close the door, and Ms. D. complied. Defendant then threw himself upon her, slammed her to the wall, and pinned her with the weight of his body. He thrust one hand inside Ms. D.'s blouse, onto her breast, and the other under her skirt and undergarments to fondle her genital area. Ms. D. attempted to push defendant away, but was unable to do so. During the attack, defendant repeatedly attempted to kiss Ms. D. She continued to try to push him away and told him that she had to leave. Finally, he lightened his weight, and Ms. D. was able to extricate herself and run out of the office.

In April 1994, a felony complaint was filed against defendant. Count 1 alleged a felony violation of Penal Code section 243.4, subdivision (a), sexual battery by restraint. ¹ Count 2 alleged a felony violation of sections 236 and 237, false imprisonment by violence, menace, fraud or deceit.

Ms. D. was the only witness at the preliminary hearing. At the conclusion of her testimony, defendant's attorney moved for dismissal on the ground that the evidence did not establish probable cause to hold defendant to answer the felonies charged against him. The defense theory was that the facts did not rise to the level of restraint or violence necessary to constitute a felony, as opposed to misdemeanor battery or false imprisonment.

After argument by both sides, the magistrate concluded that the physical restraint requisite for the felonies was not established. The magistrate exhibited some reluctance in coming to this conclusion, but stated that the law required it. She ordered count 1, felony sexual battery, "reduced" to misdemeanor battery under section 242, and purported to strike the felony portion of count 2, leaving that charge as a simple violation of section 236, misdemeanor false imprisonment. She ordered the charges tried in the municipal court.

The district attorney moved to reinstate the felony charges in the superior court pursuant to section 871.5. That motion was opposed by the defendant on the ground that the magistrate properly had reduced the charges, that section 871.5 does not lie to review an order of this kind, and that the motion was untimely because defendant already had been arraigned in municipal court on the misdemeanors.

The superior court assumed the magistrate exercised her discretion pursuant to section 17, subdivision (b)(5) in reducing the felony charges to misdemeanors. It concluded that section 871.5 allows review by the superior court only of dismissals pursuant to enumerated code sections, and that this authority does not extend to review of an order reducing felony charges to misdemeanors. Based on this, the court concluded that it was without jurisdiction to consider the district attorney's motion, which it then denied.

The district attorney petitioned this court to issue a writ of mandate commanding the superior court to vacate its order and to hear the section 871.5 motion on its merits. We issued an alternative writ and a show cause order.

DISCUSSION

I

The superior court concluded the magistrate was acting within her authority to reduce felony charges to misdemeanors pursuant to section 17, subdivision (b)(5). As we shall explain, we disagree.

A magistrate's powers at a felony preliminary hearing are purely statutory. (People v. Silverbrand (1990) 220 Cal.App.3d 1621, 1626, 270 Cal.Rptr. 261; People v. Brandon (1989) 206 Cal.App.3d 1565, 1569, 254 Cal.Rptr. 504.) These limited powers have been summarized in the following terms: "once a felony complaint has been filed and the defendant arraigned thereon, a magistrate's options are limited by the Penal Code. Thus, the magistrate may: 1) conduct the preliminary examination (Pen.Code, § 806); and 2) hold the defendant to answer for trial in the superior court (Pen.Code, § 872); or 3) discharge the defendant if there is insufficient evidence (Pen.Code, § 871); or 4) if the defendant pleads guilty, certify the defendant to superior court (Pen.Code, § 859a); or 5) if the matter is a 'wobbler,' reduce the offense to a misdemeanor (Pen.Code, § 17, subd. (b)(5))." ² (People v. Municipal Court (White) (1979) 88 Cal.App.3d 206, 213, 151 Cal.Rptr. 861; see also Ramos v. Superior Court (1982) 32 Cal.3d 26, 30, 184 Cal.Rptr. 622, 648 P.2d 589 [discussion of 1980 statute delineating magistrate's power to dismiss].)

Under this statutory scheme, a magistrate may only reduce an offense to a misdemeanor if it is a felony-misdemeanor ("wobbler"), which may be prosecuted as either a felony or a misdemeanor. And even then the reduction is permitted only because the Legislature specifically empowered magistrates so to act. The authorization is in section 17, which provides: "(b) 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: [p] ... [p] (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."

The first issue, therefore, is whether the reductions in this case were within the scope of the magistrate's authority under section 17, subdivision (b)(5). The complaint charged defendant with two offenses: in count 1, felony sexual battery by restraint, a violation of section 243.4, subdivision (a); and in count 2, felony false imprisonment by violence, menace, fraud or deceit in violation of sections 236 and 237.

Section 243.4, subdivision (a) provides: "Any person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000)." Since this statute provides for either punishment in the county jail or imprisonment in state prison, it is a "wobbler" and the magistrate could have reduced the charge to misdemeanor sexual battery in violation of section 243.4. That is not what the magistrate did. Instead, she purported to reduce the offense to a different crime, simple battery. (§ 242.) That was beyond the power conferred by section 17, subdivision (b)(5).

Count 2 of the complaint charged defendant with felony false imprisonment. Section 236 defines the offense: "False imprisonment is the unlawful violation of the personal liberty of another." The punishment is set out in section 237: "False imprisonment is punishable by fine not exceeding one thousand dollars ($1,000), or by imprisonment in the county jail not more than one year, or by both. If such false imprisonment be effected by violence, menace, fraud, or deceit, it shall be punishable by imprisonment in the state prison."

False imprisonment is therefore not a wobbler which may be charged as either a misdemeanor or a felony. If the crime is committed by violence, menace, fraud, or deceit, it is a felony, and the court has no discretion to treat it as a misdemeanor. This type of felony has been referred to as a "straight" felony, to distinguish it from a wobbler for purposes of section 17 analysis. (See People v. Mendez (1991) 234 Cal.App.3d 1773, 1779, 286 Cal.Rptr. 216.)

In People v. Manning (1982) 133 Cal.App.3d 159, 183 Cal.Rptr. 727 the court reached the same ...