Necochea v. Superior Court

Opinion

On September 13, 1971 a complaint was filed alleging the commission of three misdemeanors (Pen. Code, §§ 470 and 475a). After arraignment and continuance of the plea, and thus before the plea to the charges, a new complaint was filed alleging the three offenses, as felonies, the misdemeanor complaint was dismissed in the interests of justice (Pen. Code, § 1385), and thereafter a preliminary hearing was held on the felony complaint. Petitioner was held toi answer. An information was filed setting forth the offenses as felonies, a plea of not guilty to the charges was entered, and petitioner’s ensuing motion to dismiss the information (Pen. Code, § 995) was denied.

The issue in this proceeding which seeks to prohibit^[1] the respondent court from holding a trial on the felony charges, is whether the district attorney’s election to file a complaint specifying the offenses as misdemeanors (Pen. Code, § 17, subd. (b)(4)) is a conclusive election irrespective of the facts which caused a dismissal of the misdemeanor complaint. If it is “conclusive,” as petitioner contends it is, the contended-for effect would be to prevent the filing of a new complaint since the district attorney’s election to file misdemeanor charges would, under petitioner’s view, deprive him of the power to raise the misdemeanor characterization of the charges , to a felony classification. Petitioner relies, in this regard on Penal Code section 17, subdivision (b)(4), which provides in essence that in the case of an offense alternatively punishable as a felony or misdemeanor the filing of a misdemeanor complaint classifies the crimes as a misdemeanor “for all purposes.”^[2]

The case most closely in point, People v. Hannon, 5 Cal.3d 330 [ 96 Cal.Rptr. 35 , 486 P.2d 1235 ], which has received scant attention from the parties herein, held that a commitment to the Youth Authority, which

the offender and to encourage misdemeanor filings where such appear to be warranted.^[3] Where, as here, a filing is effectively aborted by the order of dismissal, a judicial act, the district attorney’s attempt to extend misdemeanant treatment to the offender is also' at an end. Pragmatically, the election to charge an alternatively punishable offense as a misdemeanor is not made on the abstract (and erroneous) grounds that the offense is conceptually a misdemeanor but it is rather intended to extend misdemeanant treatment to a potential felon. In other words, the purpose of 17, subdivision (b)(4), is not to vest the prosecutor with the judicial prerogative of decreeing in the form of a judgment the misdemeanor-felony nature of the crime, but rather to vest the district attorney with the right to extend more lenient treatment to an offender. An exercise of the prerogative detailed in section 17, subdivision (b)(4), would not be encouraged if prosecuting agencies would have to avail themselves thereof at the peril that even if the proceeding is terminated by a dismissal, the original election would be forever binding, In view of the clear policy of the law favoring an expeditious resolution of misdemeanor charges (Pen. Code, §§ 1382, 1387) the dismissal of a misdemeanor proceeding cannot be followed by yet another misdemeanor complaint and when such a dismissal is entered, court and counsel are well aware of the reality that the offender either goes free or to a preliminary hearing upon a felony complaint.^[4]

We hold that the district attorney could, under the circumstances at bench, lawfully file the complaint Charging the commission of felonies and proceed thereon and that the motion to dismiss- the information was appropriately denied.