Metropolitan News-Enterprise


Tuesday, November 29, 2022


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Court of Appeal:

People Can’t Appeal Judge’s Pretrial Reduction of Charge

Majority Says Order That Wobbler Be Tried as Misdemeanor Was Erroneous but Nonappealable


By a MetNews Staff Writer


A judge erred in reducing a charge from a felony to a misdemeanor before trial, but the People have no right to appeal the order, the Court of Appeal for this district declared yesterday in a 2-1 decision.

Retired Justice Steven Z. Perren, sitting on assignment to Div. Six., authored the majority opinion, in which Presiding Justice Arthur Gilbert joined. Justice Kenneth Yegan dissented.

Benjamin Bartholomew is accused of attempting to dissuade a witness, which may be tried as either a misdemeanor or a felony. Bartholomew was charged with a felony; San Luis Obispo Superior Court Judge Brian R. Aronson ordered that the charge be reduced to a misdemeanor.

Not on dispute was that Aronson had no power to do that. Under Penal Code §17(b), they agreed, the judge could only lower the charge after a conviction.

The disagreement was whether the People have a remedy.

Prosecution Cites Statute

The Office of District Attorney argued that a right of appeal is founded on Penal Code §1238(a)(6) which permits an appeal from “[a]n order modifying the verdict or finding by reducing the degree of the offense or the punishment imposed or modifying the offense to a lesser offense.”

Perren wrote:

“In the instant matter, however, guilt had not been adjudicated. Consequently, the order was not ‘[a]n order modifying the verdict’ pursuant to subdivision (a)(6).”

The jurist declared that “[b]ecause the appeal is not authorized by law, it must be dismissed.”

In a footnote, Perren said:

“The People have not requested that we treat the appeal as a petition for an extraordinary writ. We would decline to do so in any event because the People did not timely seek writ review.”

Yegan protested:

“For every wrong, there is a remedy. So says the Legislature (Civil Code, § 3523), relying upon the venerable Latin phrase, ubi jus, ibi remedium. Except in this case. The majority opinion concedes that the trial court was wrong but says that the People may not appeal. This severely prejudices the People of the State of California. It was wrong for the trial court to even consider the post-preliminary hearing, pretrial motion to reduce a felony to a misdemeanor. The majority opinion impliedly concedes this point. Then, the trial court overruled the prosecutor’s exclusive discretionary charging authority. It substituted it’s judgment for that of the prosecutor and granted the motion. This was wrong. The majority opinion expressly concedes that this was error. But it forecloses the People from review by appeal.”

‘Bartholomew Motion’

He continued:

If the majority opinion is correct, there will be a new arrow in defense counsel’s quiver—a ‘Bartholomew motion.’ Why not? If a trial court entertains such a motion and grants it, there is no appeal. This will be a great settlement tool and clear criminal calendars of ‘wobbler’ offenses. But the separation of powers principle of our State Constitution is now sacrificed. There is one good thing about the majority opinion. It serves as an example of how the trial court should not proceed.”

Yegan argued:

“The trial court’s order is appealable pursuant to Penal Code section 1238, subdivisions (a)(1) and (a)(8) because it was unauthorized and usurped the prosecution’s constitutional charging function. The order is tantamount to a dismissal of the felony charge. Section 1238, subdivision (a)(1) provides that the People may appeal from ‘[a]n order setting aside all or any portion of the indictment, information, or complaint.’ Subdivision (a)(8) provides that the People may appeal from ‘[a]n order or judgment dismissing or otherwise terminating all or any portion of the action....’ The word, ‘felony’ is a ‘portion’ of the information or the ‘action’ within the meaning of section 1238, subdivisions (a)(1) and (a)(8).”

The justice remarked:

“Surely, the Legislature did not intend to deny the People the right to seek review, on direct appeal, of the trial court’s unauthorized order. Perhaps the People could have filed a timely petition for an extraordinary writ. But this is doubtful….And, the opportunity to seek appellate review by  way of an extraordinary writ is not a substitute for review as a  matter of right by way of an appeal.”

The case is People v. Bartholomew, B316314.


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