Whittaker v. Superior Court of Shasta County

Decision Date18 March 1968
Citation66 Cal.Rptr. 710,68 Cal.2d 357,438 P.2d 358
CourtCalifornia Supreme Court
Parties, 438 P.2d 358 Roger WHITTAKER et al., Petitioners, v. The SUPERIOR COURT OF SHASTA COUNTY et al., Respondents. Sac. 7820.

Jerrald K. Pickering, Redding, for petitioners.

Thomas C. Lynch, Atty. Gen., Doris H. Maier, Asst. Atty. Gen., Nelson P. Kempsky and Edsel W. Haws, Deputy Atty. Gen., for respondents.

SULLIVAN, Justice.

On December 21, 1966, petitioner Roger Whittaker was convicted by a jury in the Justice Court of the Redding Judicial District (Shasta County) of violating section 2141 of the Business and Professions Code, which provides in general that the practice of medicine without a valid, unrevoked physician's certificate constitutes a misdemeanor. (See also Bus. & Prof.Code, §§ 2135, 2137, 2426.) On the same date petitioner George C. Stevenson, M.D., was convicted in the same court of the same crime as an aider and abettor. (See Pen.Code, § 31.) The convictions arose out of an operation performed by Dr. Stevenson during which Whittaker acted as a surgical technician.

From the judgments of conviction, each petitioner appealed to the Superior Court of Shasta County. (See Cal.Const., art. VI, § 11; 1 Pen.Code, §§ 1466--1469; Cal.Rules of Court, rules 181--191.) After a hearing before the presiding judge of that court, sitting alone, the judgments were affirmed on April 17, 1967. A petition for certification by the superior court that transfer of said cases to the Court of Appeal appeared necessary, was denied April 28, 1967. (See Pen.Code, § 1471; Cal.Rules of Court, rules 62, 63.) Petitioners nevertheless appealed to the Court of Appeal which on June 20, 1967, on motion of the People, dismissed their appeals.

On June 27, 1967, petitioners filed in the Court of Appeal, Third Appellate District, a 'Petition for Writ of Certiorari, Coram Nobis or in the Alternative a Writ of Mandamus' which alleged, insofar as is here relevant, that the failure of the Superior Court of Shasta County to convene a three-judge appellate department to hear their appeals constituted a violation of their rights under the due process and equal protection clauses of the Fourteenth Amendment to the United States Constitution as well as under comparable provisions of the California Constitution. On July 11 an order to show cause issued (see Code Civ.Proc. § 1069), and on December 28, 1967, the court issued a writ ordering that the Superior Court of Shasta County vacate its judgment on appeal and convene a three-judge appellate department of the superior court to hear petitioners' appeal.

In view of the far-reaching effect of this decision, and of the necessity that the issues involved be determined by the higher courts at the earliest possible opportunity we transferred the matter to this court on our own motion and without waiting for the decision to become final as to the Court of Appeal. (See Cal.Const., art. VI, § 12; 1967 Judicial Council Report 77; Witkin, New Rules on Appeal, Part IV, Hearing and Determination of Appeal (1944) 17 So.Cal.L.Rev. 232, 267--268.)

The holding of the Court of Appeal was, in brief, that that portion of section 77 of the Code of Civil Procedure which provides for a three-judge appellate department only in counties which have a municipal court 2 is violative of the equal protection clause of the Fourteenth Amendment and is therefore void. A proper consideration of this question requires some understanding of California court structure, a matter which we now proceed to consider in brief outline.

In this state the principal trial court, having unlimited monetary and subject matter jurisdiction except where jurisdiction is expressly given courts of limited jurisdiction, is the superior court. 'In each county there is a superior court of one or more judges.' (Cal.Const., art. VI, § 4.)

In addition, there are courts of limited jurisdiction 3 in each county. 'Each county shall be divided into municipal court and justice court districts as provided by statute, but a city may not be divided into more than one district. * * * There shall be a municipal court in each district of more than 40,000 residents and a justice court in each district of 40,000 residents or less.' (Cal.Const., art. VI, § 5.) The division of counties into judicial districts is, by statute, a function of the respective boards of supervisors of the several counties. (See Gov.Code, § 71040 et seq.) 4

The state Constitution provides that the 'Superior courts have Appellate jurisdiction in causes prescribed by statute that arise in municipal and justice courts in their counties.' (Italics added.) (Cal.Const., art. VI, § 11.) Statutory implementation 5 5 of this provision manifests differences in the scope and content of such appellate jurisdiction according to (1) whether there is an appellate department of the superior court in the county; (2) whether the appeal is from a municipal or justice court; (3) whether the appeal, if from a justice court, involves questions of fact; and (4) whether the judgment appealed from is civil or criminal.

In counties where there Are municipal courts, and where there is therefore an appellate department of the superior court (see fn. 2, ante), all appeals involving only questions of law, whether such appeals be from municipal courts or justice courts and whether they be in civil or criminal cases, are heard in the appellate department. (Code Civ.Proc. §§ 77, subd (g), 983, subd. (a); Pen. Code, § 1469; 6 see also People v. Allenthorp (1966) 64 Cal.2d 679, 682, 51 Cal.Rptr. 244, 414 P.2d 372; 59 Cal.Rptr. 702; Thomasian v. Superior Court (1953) 122 Cal.App.2d 322, 331--333, 265 P.2d 165; Unemp. etc. Com. v. St. Francis etc. Assn. (1943) 58 Cal.App.2d 271, 274--275, 137 P.2d 64.) When, however, a Civil appeal from a justice court in such a county involves questions of fact or questions of both law and fact, or when the appeal is from a justice or municipal court in such a county sitting as a small claims court, there must be a trial de novo before a one-judge superior court. (Code Civ.Proc. §§ 77, subd. (g), 983, subd. (b), 117j.) 7 Criminal appeals from municipal or justice courts may raise only questions of law (Pen. Code, § 1469; 8 see also People v. Garrigan (1955) 137 Cal.App.2d Supp. 854, 856, 289 P.2d 892) so that such appeals in counties having municipal courts are heard by the appellate department.

In counties where there are No municipal courts, and where there is therefore no appellate department of the superior court, all appeals both civil and criminal from the justice courts involving Only questions of law are heard by a single judge of the superior court sitting as a court of appeal. With regard to civil justice court appeals involving questions of fact of questions of both law and fact, or judgments of the small claims court, the situation in such counties is identical with that in counties having municipal courts and appellate departments--the appeal involves a trial de novo before a single judge of the superior court. (Code Civ.Proc. §§ 983, subd. (b), 117j. 9 ) Again, criminal appeals from the justice courts may raise only questions of law (Pen.Code, § 1469 10), and such appeals are heard by a single judge of the superior court sitting as a court of appeal.

In all Civil appeals not involving a trial de novo the superior court or appellate department 'may affirm, reverse or modify any judgment or order appealed from, and may direct the proper judgment or order to be entered, and may, if necessary or proper, direct a new trial or further proceedings to be had.' (Code Civ.Proc. § 988h; see also Stafford v. Municipal Court (1960) 180 Cal.App.2d 368, 4 Cal.Rptr. 441.) In all Criminal appeals the superior court or appellate department 'may reverse, affirm or modify the judgment or order appealed from, and may set aside, affirm or modify any or all of the proceedings subsequent to, or dependent upon, such judgment or order, and may, if proper, order a new trial.' (Pen. Code, § 1469; see also People v. Garrigan, supra, 137 Cal.App.2d Supp. 854, 289 P.2d 892.) When a new trial is ordered by the reviewing court in any appeal, civil or criminal, the new trial must be had in the superior court 'unless the appeal is from a municipal court in which case the new trial must be had in the court from which the appeal was taken.' (Code Civ.Proc. § 988h; see substantially identical language in Pen. Code. § 1469.)

No further remedy by way of appeal is available after decision of the superior court or appellate department (whether or not a trial de novo is had) unless, in accordance with rules promulgated by the Judicial Council, the Court of Appeal orders the case transferred to itself upon certification by the superior court, or determination by the Court of Appeal itself, that such transfer 'appears necessary to secure uniformity of decision or to settle important questions of law.' (Code Civ.Proc., § 988t; Pen. Code, § 1471; People v. Allenthorp, supra, 64 Cal.2d 679, 682, 51 Cal.Rptr. 244, 414 P.2d 372; see also Cal. Rules of Court, rules 62 and 63.)

Appended to this opinion and marked Appendix A is a compilation comparing the several counties of the state as to population, number of superior court judges, and existence of municipal courts. 11 This compilation reveals that those counties ranking from No. 1 to No. 22 inclusive in population (7,080,300 to 173,200) have three or more judges in their respective superior courts, have at least one municipal court, and therefore have an appellate department of the superior court; that Santa Cruz County, which ranks No. 23 in population (114,400), has two superior court judges, has a municipal court, and therefore has an appellate department of the superior court; that Merced County, which ranks No. 24 in population (111,900), has two superior court judges but lacks a municipal court and therefore, an appellate department of the...

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