Robinson v. Municipal Court

• Decision Date: 11 April 1979
• Court: California Court of Appeals Court of Appeals
• Parties: Brenda J. ROBINSON, Gloria Ann Robertson, Dorothy Roundtree, Plaintiffs and Appellants, v. The MUNICIPAL COURT FOR the SOUTHERN JUDICIAL DISTRICT, COUNTY OF SAN MATEO et al., Defendants; The PEOPLE of the State of California, Real Party in Interest and Respondent. Civ. 44155.

Page 792

154 Cal.Rptr. 792

92 Cal.App.3d 409

Brenda J. ROBINSON, Gloria Ann Robertson, Dorothy Roundtree, Plaintiffs and Appellants, v. The MUNICIPAL COURT FOR the SOUTHERN JUDICIAL DISTRICT, COUNTY OF SAN MATEO et al., Defendants;

The PEOPLE of the State of California, Real Party in Interest and Respondent.

Civ. 44155.

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

April 11, 1979.

Ruth Miller, Davidson, Paoli & Miller, Foster City, for plaintiffs and appellants.

George Deukmejian, Atty. Gen., of the State of California, Jack R. Winkler, Chief Asst. Atty. Gen., Criminal Div., Gloria F. DeHart, Deputy Atty. Gen., Thomas A. Brady, Deputy Atty. Gen., San Francisco, for real party in interest and respondent.

Kathy Krohn, Oakland, Schapiro & Thorn, San Francisco, for amicus curiae Queen's Bench.

RACANELLI, Presiding Justice.

Appellants are charged in separate complaints with felony violations of section 11483 of the Welfare and Institutions Code (welfare fraud). ¹ Before commencement of the preliminary hearing, each appellant filed a "McGee motion" (People v. McGee (1977) 19 Cal.3d 948, 140 Cal.Rptr. 657, 568 P.2d 382) to dismiss the complaint on grounds that the prosecution failed to comply adequately with the statutory mandate to attempt restitution prior to institution of criminal proceedings. Upon conclusion of each of the evidentiary hearings, the magistrate denied the requested relief. Thereafter, appellants individually filed an original petition in the superior court seeking to mandate dismissal of the complaint and to prohibit further criminal proceedings. Following a hearing, each petition was denied; thereafter, the separate actions were consolidated for purposes of the within appeal.

I. Appealability

Respondent initially argues that no appeal lies to review the superior court's denial of the petition for mandamus or prohibition since appellants' remedy was limited to a pretrial motion in the Trial court reviewable either upon direct appeal from the resultant conviction or, alternatively, by a pretrial extraordinary petition to this court. Our resolution of this threshold inquiry is dispositive requiring dismissal of the purported appeal.

[1-3] It is now settled that while the prosecution has an absolute duty to seek restitution prior to initiation of criminal proceedings under the provisions of Welfare and Institutions Code section 11483 (People v. McGee, supra, 19 Cal.3d 948, 961, 140 Cal.Rptr. 657, 568 P.2d 382), a claim of defective compliance must be raised and resolved in the Trial court by a pretrial nonstatutory motion to dismiss (Id. at pp. 967, 968, 140 Cal.Rptr. 657, 667, 568 P.2d 382, 392; see also fn. 9). Where, as here, the accusation relates to a felony violation (§ 11483, subd. (2)), such procedural defense should properly be raised by "pretrial motion to set aside the information" (Id. at p. 967, 140 Cal.Rptr. at p. 667, 568 P.2d at p. 392) before the superior court, the court of original trial jurisdiction. (See Cal.Const., art. VI, § 10; Pen.Code, § 1462; Witkin, Cal. Criminal Procedure (1978 Supp.) § 31, p. 59.) Moreover, not only is the prescribed method of challenge expressly mandated by McGee, but a municipal court judge in exercising the limited function of a magistrate (see People v. Hawkins (1978) 85 Cal.App.3d 960, 965-966, 149 Cal.Rptr. 855 and authorities there collected) is not a "court" invested with either an inherent or statutory power to dismiss a felony complaint except upon a showing of no probable cause. (See People v. Peters (1978) 21 Cal.3d 749, 147 Cal.Rptr. 646, 581 P.2d 651; accord People v. Levins (1978) 22 Cal.3d 620, 150 Cal.Rptr. 458, 586 P.2d 939; see also People v. Uhlemann (1973) 9 Cal.3d 662, 108 Cal.Rptr. 657, 511 P.2d 609; Pen.Code, § 871.) Thus, the motion to dismiss upon the grounds urged was beyond the limited jurisdiction of the magistrate; an order of dismissal by the magistrate would have constituted a nullity. (Cf. Burris v. Superior Court (1974) 43 Cal.App.3d 530, 538, 117 Cal.Rptr. 898.) In such circumstances, the interim order denying appellants' motion to dismiss was not properly subject to review by a petition for mandamus or prohibition in the superior court. (See People v. Levins, supra, 22 Cal.3d at p. 624, 150 Cal.Rptr. 458, 586 P.2d 939; cf. Provencher v. Municipal Court (1978) 83 Cal.App.3d 132, 147 Cal.Rptr. 615.) As stated in the case last cited, as a general proposition interim orders should be relegated to review on appeal from the final judgment; and while the superior court may have unnecessarily treated appellants' request on the merits, "we are not bound to follow suit." (Id. at p. 134, 147 Cal.Rptr. at p. 616.) Accordingly, the appeal must be...