Hartman v. Superior Court

After the evidence had been adduced, petitioner moved the magistrate to reduce the felony burglary charge to a misdemeanor pursuant to Penal Code section 17. His attorney argued that the facts of the crime and petitioner’s prior criminal record justified such a reduction.^[3]

After the prosecutor argued against the motion, the following dialogue occurred:

“The Court: Mr. Staley [Defense Counsel], if the court made it a misdemeanor under Section 17, is the defendant going to plead guilty?

“Mr. Staley: Not at this time, your Honor. I would point out October 1st was a Thursday. It was in approximately in the middle of the week, Thursday morning. Court’s already heard the testimony concerning the residential use.

“The Court: All right. Any other defense or motions?

“Mr. Staley: No, your Honor.

“The Court: All right. I will deny the motion to make it a Section 17.”

Petitioner was held to answer for felony burglary.

Petitioner moved respondent court to set aside the information upon the ground, inter alia, that he was illegally committed because the magistrate inquired whether he would plead guilty to a misdemeanor. The motion was denied.

Discussion

Review by writ of mandate is proper. (See People v. Pompa-Ortiz (1980) 27 Cal.3d 519 , 529 [ 165 Cal.Rptr. 851 , 612 P.2d 941 ].)

In Jackson v. Superior Court (1980) 110 Cal.App.3d 174 [ 167 Cal.Rptr. 749 ] the magistrate expressly stated that he would grant the defendant’s motion to reduce a felony charge to a misdemeanor if the

defendant would plead guilty to the reduced charge, but otherwise would deny the motion. The reviewing court held that a magistrate may not condition the exercise of his judicial discretion to reduce the offense to a misdemeanor upon the entry of a plea of guilty by the defendant. In doing so, the court relied upon In re Lewallen (1979) 23 Cal.3d 274 [ 152 Cal.Rptr. 528 , 590 P.2d 383 , 100 A.L.R.3d 823 ], and Esteybar v. Municipal Court (1971) 5 Cal.3d 119 [ 95 Cal.Rptr. 524 , 485 P.2d 1140 ],

Lewallen holds that the fact of conviction upon a plea of not guilty is “completely irrelevant at sentencing; if a judge bases a sentence, or any aspect thereof, on the fact that such a plea is entered, error has been committed and the sentence cannot stand.” (23 Cal.3d at p. 279.)

Esteybar v. Municipal Court, supra, 5 Cal.3d 119 , 125 states, “In determining whether a defendant should be held to answer on a felony or a misdemeanor, a committing magistrate exercises a judicial power which must be based upon an examination of the circumstances of the particular case before him.”

In this case, the magistrate did not expressly condition the exercise of his discretion upon petitioner’s willingness to plead guilty to a misdemeanor; however, the magistrate inferably considered petitioner’s willingness to plead guilty in exercising his discretion to reduce the charge.^[4]

The circumstances of the case within the meaning of Esteybar do not include petitioner’s intent to exercise his constitutional right to stand trial upon the misdemeanor if Penal Code section 17 relief is granted. Such an intent is as irrelevant to the charge reduction issue before the magistrate in this case as a not guilty plea to sentencing after conviction. (See In re Lewallen, supra, 23 Cal.3d 274 , 279.)

Furthermore, the magistrate’s inquiry as to petitioner’s intent to plead guilty gives rise to one or more of the following appearances of impropriety: (1) judicial discretion was being exercised to encourage and/or coerce a guilty plea; (2) petitioner was penalized by an adverse ruling upon his motion to reduce the charge for exercising his constitu