People v. Superior Court (Elder)

• Decision Date: 03 June 1988
• Docket Number: No. F009407,F009407
• Citation: 201 Cal.App.3d 1061,247 Cal.Rptr. 647
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Petitioner, v. The SUPERIOR COURT of Fresno County, Respondent, Richard ELDER et al., Real Parties in Interest.

Page 647

247 Cal.Rptr. 647

201 Cal.App.3d 1061

The PEOPLE, Petitioner, v. The SUPERIOR COURT of Fresno County, Respondent, Richard ELDER et al., Real Parties in Interest.

No. F009407.

Court of Appeal, Fifth District, California.

June 3, 1988.

Review Denied Sept. 15, 1988.

Certiorari Denied Jan. 17, 1989. See 109 S.Ct. 838.

[201 Cal.App.3d 1063] John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., W. Scott Thorpe and Edgar A. Kerry, Deputy Attys. Gen., Sacramento, for petitioner.

No appearance for respondent.

Calvert & Milrod and Cynthia Calvert, Fresno, for real parties in interest.

Daniel Yamshon, for amicus curiae on behalf of real parties in interest.

OPINION

WOOLPERT, Acting Presiding Justice.

We are asked to review an order of the superior court granting mandamus relief which protected the real parties in interest from prosecution under PENAL CODE SECTION 597B^{1 2} as "spectators" at a cock fight. Despite an apparently long history of unchallenged enforcement of the subject statute, the superior court agreed with the contention of the real parties in interest that the word "spectator" was impermissibly vague; it could be construed to criminalize innocent presence at a cockfight as well as purposeful attendance. We agree that facially the relevant portion of section 597b is not sufficiently certain for due process concerns. However, the analysis does not stop there. As explained below, we find a fair and reasonable construction of the relevant portion of section 597b prohibits a person from being knowingly present as a spectator at such fighting or worrying of an animal for the purpose of watching such fighting or worrying.

On July 24, 1986, petitioner filed a first amended complaint in the Fowler Justice Court alleging, in relevant part:

"COUNT ONE

"VIOLATION OF SECTION 597(b) [sic ] OF THE PENAL CODE, a misdemeanor. The [real parties in interest], on or about June 14, 1986, did willfully and unlawfully aid, abet, and be present, as a spectator, at the fighting and worrying of cocks with like kind and different kind of animal and creature."

Real parties in interest unsuccessfully demurred to the charge on the grounds section 597b criminally sanctioned conduct which was constitutionally protected, that is, being a spectator. Thereafter, real parties in interest petitioned defendant to mandate that the justice court sustain the demurrer and dismiss the charges brought under section 597b.

Following briefing and a hearing on the matter, the superior court issued the following order:

"Petitioners are correct in stating that neither mere presence at the scene of a crime, if such presence does not itself assist commission of the crime, nor mere knowledge that the crime is being committed and the defendants' failure to prevent it, is not, in and of itself, a crime. See CALJIC 3.01, 1984 Rev.; In re Michael T. (1978) 84 Cal.App.3d 907 .

"Further, if one examines the word 'spectator' as set forth in the statute, he/she will not be put on notice as to what conduct is criminal. That is, if one were to merely pass by and look upon the activity, he/she could arguably be subject to criminal prosecution. Such a definition and application violate the notion of fair notice and due process. See Connally v. General Construction Co. (1926) 269 U.S. 385 [46 S.Ct. 126, 70 L.Ed. 322].

"This meaning is reinforced by a review of WEBSTER'S NEW UNIVERSAL UNABRIDGED DICTIONARY which defines 'spectator' as follows:

" '... one who looks on; one who sees or beholds a given thing or event without taking an active part....' (Emphasis added.)

"Thus, the term as used in the statute appears to require mere presence without any active participation by a person witnessing a cockfight.

"For the reasons set forth on the record at hearing, the writ of mandate is granted to the extent of deleting the unconstitutional portion of Penal Code section 597 relating to being a mere 'specator [sic ].' "

Arguing the disputed language of section 597b is not unconstitutionally vague but rather provides fair notice of what constitutes criminal conduct, petitioner seeks review of defendant's order. The petition also raises the issue of whether the People are entitled to writ review of the order.

DISCUSSION

I. Reviewability

This court requested briefing concerning whether the People were entitled to writ review of the superior court's order. We cited People v. Drake (1977) 19 Cal.3d 749, 139 Cal.Rptr. 720, 566 P.2d 622. Drake recognized section 1238, which restricts the People's right to appeal in criminal cases is not merely a procedural limitation allocating appellate review between direct appeals and extraordinary writs. It is a substantive limitation on review of trial court determinations in criminal trials. ( Id. at p. 758, 139 Cal.Rptr. 720, 566 P.2d 622, citing People v. Superior Court (Howard) (1968) 69 Cal.2d 491, 498, 72 Cal.Rptr. 330, 446 P.2d 138.)

As real parties in interest observe, the superior court has struck only a portion of section 597b, in effect ordering the justice court to sustain the demurrer on the "spectator" allegation. The real parties in interest remain charged on an aiding and abetting theory under section 597b. However, the People's ability to appeal with regard to a ruling on demurrer is limited to those cases where there is a "judgment for the defendant on a demurrer to the indictment, accusation, or information." (§ 1238, subd. (a)(2); emphasis added.)

In People v. Rehman (1964) 62 Cal.2d 135, 41 Cal.Rptr. 457, 396 P.2d 913, the court held an order sustaining a demurrer which did not result in a judgment was not the equivalent of a judgment, for appellate purposes. To permit otherwise would not carry out the intent of the legislature in using the word "order" in section 1238, subdivision (1), ³ and the word "judgment" in subdivision (2). Accordingly, real parties in interest in this action argue the prosecution may not obtain appellate relief unauthorized by the legislature by substituting a pre-trial mandamus petition as its appellate method.

Real parties in interest, however, fail to take account of a line of cases starting with People v. Yoshimura (1976) 62 Cal.App.3d 410, 133 Cal.Rptr. 228, in which some appellate courts have afforded writ review of an order sustaining a demurrer to a single count. In Yoshimura, the People purportedly appealed from the order sustaining such a demurrer. ⁴ The appellate court dismissed the appeal consistent with section 1238. However, it suggested the prosecution should seek reconsideration from the trial court or, if necessary, a writ from the appellate court. (Id. at pp. 412-413, 133 Cal.Rptr. 228.) After unsuccessfully seeking reconsideration, the People filed a mandamus petition which the appellate court ultimately granted. ( Id. at p. 416, 133 Cal.Rptr. 228.) Notably, the Yoshimura court did not discuss its reasoning for permitting writ review. Nevertheless, a petition for hearing in Yoshimura by the California Supreme Court was subsequently denied. ( Id. at p. 416, 133 Cal.Rptr. 228.)

Since then the appellate courts in People v. Superior Court (Jennings) (1986) 183 Cal.App.3d 636, 640, 228 Cal.Rptr. 357; People v. Superior Court (Kizer) (1984) 155 Cal.App.3d 932, 935, 204 Cal.Rptr. 179; People v. Superior Court (Colbert) (1978) 78 Cal.App.3d 1023, 1026, 144 Cal.Rptr. 599, have permitted writ review of orders sustaining demurrers.

The Jennings court merely cited Yoshimura, Kizer and Colbert, and stated the People properly filed a petition for extraordinary relief. The Kizer court observed, without explanation:

"The Legislature has indicated its intention to give the People a right to appellate review of a trial court decision on a demurrer. (Compare People v. Drake (1977) 19 Cal.3d 749, 758 [139 Cal.Rptr. 720, 566 P.2d 622].)" ( Kizer, supra, at p. 935, 204 Cal.Rptr. 179.)

In both Jennings and Kizer, petitions for hearing were also denied. ( Jennings, supra, 183 Cal.App.3d at 648, 228 Cal.Rptr. 357; Kizer, supra, 155 Cal.App.3d at 936, 204 Cal.Rptr. 179.)

The Colbert court similarly concluded writ review was available. It reasoned the trial court had sustained the demurrer to a special circumstance allegation on grounds unrelated to any opinion as to guilt or innocence before jeopardy had attached. It also noted the appellate court held in People v. Superior Court (Brodie) (1975) 48 Cal.App.3d 195, 198-201, 121 Cal.Rptr. 732, writ review was available to the People where the trial court struck a special circumstance allegation before trial.

In Brodie, the appellate court discussed in some detail People v. Superior Court (Howard), supra, 69 Cal.2d 491, 72 Cal.Rptr. 330, 446 P.2d 138, cited by the court in Drake, supra. It was in Howard that the state supreme court first held the restriction on the People's right to appeal was not merely a procedural limitation allocating appellate review between direct appeals and extraordinary writs, but was a substantive limitation on review. (Howard, supra, at p. 498, 72 Cal.Rptr. 330, 446 P.2d 138.)

The Brodie court analyzed Howard and determined the People were not denied resort to an extraordinary writ under all circumstances. (Brodie, supra, 48 Cal.App.3d at p. 200, 121 Cal.Rptr. 732.)

"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 of dismissal. In denying the People's application for relief the Supreme Court said: '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.' (69 Cal.2d at p. 499 [72 Cal.Rptr. 330, 446 P.2d 138].)

"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...