Tuesday, May 17, 2005
Magistrate’s Reduction of Charge to Misdemeanor Held Not Appealable
By KENNETH OFGANG, Staff Writer/Appellate Courts
A magistrate’s reduction of a “wobbler” charge to a misdemeanor at the end of the preliminary hearing is not appealable, the California Supreme Court ruled yesterday.
In a 4-3 decision derided by the dissenters as “no less than an invitation to lawlessness,” the justices affirmed a Fourth District Court of Appeal ruling that effectively prevents prosecutors from seeking a third-strike sentence for a defendant accused of deliberately knocking an opponent unconscious during a pickup basketball game.
The defendant, Willis Williams, was charged with assault by means of force likely to produce great bodily injury and battery with serious bodily injury, with two “strike” allegations that he had been convicted of serious or violent felonies and one allegation that he had served a prior prison term.
At a preliminary hearing before Orange Superior Court Judge Andrew Banks, witnesses testified that an October 2002 game at a recreational center in Fountain Valley, Williams and James Hundley had been arguing about what Hundley felt was overly aggressive play by Williams.
At one point, according to the testimony, Hundley grabbed a ball and turned his back to Williams, swinging his elbow and possibly striking Williams. Williams, a witness said, responded by punching Hundley in the jaw, causing him to fall “like a tree, just straight sideways” and to hit his head on the ground, knocking him “out cold.”
Hundley’s injuries were described as life-threatening and possibly permanent, causing him to undergo surgery. He could not recall the incident at the time of the preliminary hearing.
Banks, noting that intentional fouls are part of sports, questioned whether Williams engaged in “felony conduct” and reduced the charges to misdemeanors “in the interest of justice.”
Prosecutors moved to reinstate the felony complaint under Penal Code Sec. 871.5. The motion was heard by Judge Kazuharo Makino, who said he could not grant relief to the prosecution because a reduction of a charge to a misdemeanor is not a dismissal and thus not within the scope of Sec. 871.5.
Prosecutors filed two separate appeals, one from Banks’ order reducing the charges and one from Makino’s order denying reinstatement. The Fourth District’s Div. Three consolidated the appeals and ruled that the orders were not appealable.
The Supreme Court yesterday disagreed with the lower panel on a technical point, holding that Makino’s order was appealable even though the magistrate’s was outside the scope of Sec. 1238, which enumerates the types of orders that the prosecution can appeal. But Makino’s order was substantively correct, Justice Carlos Moreno wrote for the court.
Sec. 871.5, Moreno noted, expressly lists — according to the number of the governing code section — the types of dismissals that prosecutors may challenge by moving to reinstate the complaint. The reduction of an offense from felony to misdemeanor at the close of the preliminary hearing, the justice explained, is governed by Sec. 17(b)(5), which is not one of the provisions listed in Sec. 871.5.
“Courts have resisted prosecutors’ efforts to expand the reach of section 871.5 beyond its terms,” Moreno said.
The justice acknowledged that an order reducing a wobbler from felony to misdemeanor at time of sentencing is appealable. But such an order differs from one entered at close of preliminary hearing, Moreno said.
“Permitting a pretrial appeal by the People while the guilt of the defendant remained at issue would significantly delay the proceedings and impact the defendant’s right to a speedy trial,” Moreno wrote. “The Legislature has permitted such pretrial appeals by the People of charges that have not been dismissed or set aside only in very limited circumstances,” such as when the trial judge has ordered a prosecutor’s office removed from a case, he added.
Moreno explained that the court was not deciding whether a magistrate’s reduction of charges is subject to writ review.
It is conceivable, he said, that such orders warrant an exception to the general rule that a non-appealable order cannot be reviewed in a writ proceeding. In this case, however, such review would be unavailable because prosecutors did not seek a writ within the time allowed by law, the justice explained.
Chief Justice Ronald M. George and Justices Joyce L. Kennard and Kathryn M. Werdegar concurred in the opinion.
Justice Marvin Baxter, joined by Justices Janice Rogers Brown and Ming Chin, dissented, calling the decision “novel” and “surprising.”
The ruling, Baxter argued, upends prior law that limits the ability of a lower court to dispense with the sentencing requirements of the Three Strikes Law.
The Supreme Court, the justice noted, has previously ruled that a judge may not dismiss strike allegations solely “to accommodate judicial convenience,” or because the judge personally objects to the law.
“After today’s ruling, however, a magistrate may do just that when the charged felony is a wobbler by instead reducing the felony to a misdemeanor — thereby eliminating the effect of the prior strike allegations — without ever having to state reasons for reducing the felony to a misdemeanor or for dismissing the strike allegations and without fear that this decision will ever be appealed,” Baxter wrote.
The dissenting jurist suggested that lawmakers “act promptly to fill the gap so as to permit appellate review of a magistrate’s order and thereby restore the rule of law.”
The case is People v. Williams, 05 S.O.S. 2263.
Copyright 2005, Metropolitan News Company