Muns v. Superior Court

This proceeding is in prohibition. The petitioner seeks to restrain the respondent superior court from trying him under an information charging violation of section 502 of the Vehicle Code, with a prior conviction.

It is the contention of petitioner that by the order made, which purportedly dismissed the original complaint, there was accomplished a dismissal of the action and that by the provisions of section 1387 of the Penal Code that dismissal stands as a bar to any other prosecution for the same offense.

The docket entries in the Justice Court read as follows:

“Dec. 14 Complaint filed charging a misdemeanor. Defendant appeared in Court was informed as to his rights. Defendant entered a plea of not guilty and demanded a trial by jury. Trial was set for January 12, 1955 at 10 A.M. Defendant posted bail of $211.00 and was released.

“Jan. 3 It being brought to the attention of the Court that the defendant had suffered a prior conviction for this violation, the above proceedings are hereby set aside and the Dist. Atty is preparing an amended Complaint charging him with a prior conviction.

“Jan. 7 Prel. date 1-13-55 at 3:30 P. M.

“Jan. 5 Amended Complaint filed charging a high misdemeanor Sect. 502 CVC Code with a prior conviction.

“Jan. 10 Subpoena issued, Perkins, Bumpus, Savana

“Jan. 13 Preliminary came on at 3:30 P. M. Dist. Atty. John Hauck represented the People—Atty. Loyd B. Hewitt represented the defendant. Hollan Jones was sworn in as Reporter. Yuba City Police Officer Neil R. Perkins was sworn and testified. The prosecution rested. The defense

offered no witnesses. The Defendant was ordered held to answer and to appear in the Superior Court on Friday Jan. 21, 1955, at 9 :30 A. M. for arraignment. Bail transferred to Co. Clerk Ck 226. Prior to the preliminary the original Complaint filed Dec. 14,1954 was at the request of the District Attorney ordered dismissed.”

Section 1387 of the Penal Code provides: “An order for the dismissal of the action, made as provided in this chapter, is a bar to any other prosecution for the same offense, if it is a misdemeanor. ...” Petitioner’s contention that by what was done the action was dismissed cannot be sustained.

Although the docket does not record the proceedings of the court with all the nicety that would have been desirable, yet, given a fair construction, it does not warrant holding that there was a dismissal of the action. It shows that the court had been informed that the defendant had suffered a prior conviction and that the district attorney was preparing to file an amended complaint to allege the prior. The legal effect of such an amendment would be to oust the justice court of trial jurisdiction, would render nugatory the proceedings following the filing of the original complaint, that is, the plea, the demand for trial by jury and the order setting the cause for trial before that court, and would require a preliminary hearing to determine whether or not defendant should be held for superior court action. With this in mind the court formally set aside such prior proceedings. Thereafter the expected amended pleading was filed. The docket further shows that when the defendant next appeared on the date set for the preliminary, and before the preliminary was begun, the district attorney requested that “the original Complaint filed Dec. 14, 1954” be ordered dismissed. This order was made. This, however, could not effect the dismissal of the action. Such a construction of the docket would fly in the face of a number of circumstances apparent from the record. Thus, after the order was made, the judge of the justice court sitting as a magistrate, held the preliminary hearing and at its conclusion ordered the petitioner held for trial in the superior court. Although acting in two different capacities, it is clear that the official did not consider that the action itself had been dismissed. Again the district attorney did not ask that the action be dismissed but that the “original complaint” be dismissed and such was the form of the order. The use of the descriptive term “original” shows that the district attorney was not addressing his motion to the action

It is argued that, since the complaint could not be amended after plea without the permission or an authorizing order of the court that it be so amended (Pen. Code, §§ 1008, 1009; People v. Brower, 92 Cal.App.2d 562 , 564 [ 207 P.2d 571 ]), and since the record does not show such permission, the filing of the amended complaint was a nullity. This argument calls for an unwarrantably strained construction of the record. We think permission must be implied. The docket states: “It being brought to the attention of the court that the Defendant had suffered a prior conviction for this violation, the above proceedings are hereby set aside and the Dist. Atty is preparing an amended Complaint charging him with a prior conviction.” Within two days thereafter the amended complaint was filed. We hold it was filed with permission of the court and that the docket sufficiently shows this to be so.

For the reasons given, petitioner is not entitled to a writ of prohibition and the superior court had jurisdiction to proceed with the trial of the action.

The alternative writ heretofore issued is discharged. The peremptory writ is denied.

Peek, J., and Sehottky, J., concurred.

Petitioner’s application for a hearing by the Supreme Court was denied February 8, 1956.