People v. Henson ( 2022 )

IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
CODY WADE HENSON,
Defendant and Appellant.
S252702
Fifth Appellate District
F075101
Fresno County Superior Court
F16901499, F16903119
August 1, 2022
Justice Jenkins authored the opinion of the Court, in which
Chief Justice Cantil-Sakauye, Justice Corrigan, and Justice
Guerrero concurred.
Justice Kruger filed a dissenting opinion, in which Justice Liu
and Justice Groban concurred.
PEOPLE v. HENSON
S252702
Opinion of the Court by Jenkins, J.
Penal Code1 section 954 provides in relevant part: “[1] An
accusatory pleading may charge two or more different offenses
connected together in their commission, or different statements
of the same offense[,] or two or more different offenses of the
same class of crimes or offenses, under separate counts, and [2]
if two or more accusatory pleadings are filed in such cases in the
same court, the court may order them to be consolidated.” As is
evident from our insertion of numerals into the text, the quoted
portion of section 954 includes two main clauses joined by the
conjunction “and.” (See People v. Merriman (2014) 60 Cal.4th 1,
36 [recognizing these distinct clauses in § 954].) The first clause
addresses joinder of related offenses in a single pleading, and for
convenience, we will refer to it as the “joinder clause.” The
second clause addresses court consolidation of separate
pleadings, which we will refer to as the “consolidation clause.”
In this case, the question before us is whether and under
what circumstances a trial court can consider more than one
preliminary hearing record in ruling on a motion under section
995 to set aside the information for lack of probable cause to
support the commitment order. (See § 995, subd. (a)(2).) But in
order to resolve that question, the parties and the Court of
Appeal offer three different interpretations of section 954. The
1
All further undesignated statutory references are to the
Penal Code.
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Opinion of the Court by Jenkins, J.
People argue that section 954’s joinder clause authorizes a
district attorney to file a single information combining related
offenses that were the subject of separate preliminary
examinations. By contrast, the Court of Appeal majority
concluded that section 954’s consolidation clause provides the
district attorney with that authority. Third, defendant argues
that a single information combining related offenses that were
the subject of separate preliminary examinations is
unauthorized absent a court-issued consolidation order — and
no such order was obtained in this case.
We conclude that section 954’s joinder clause permits a
district attorney to file a single information in the circumstances
presented here, provided, as is true here, that the applicable
time constraints are satisfied. We further conclude that when,
as here, related offenses are properly joined by the district
attorney, a trial court is permitted to consider more than one
preliminary hearing record in ruling on a section 995 motion.
Accordingly, we affirm the judgment of the Court of Appeal,
which reversed the trial court’s order of dismissal, although we
do not employ the Court of Appeal’s reasoning.
I. FACTS AND PROCEDURAL BACKGROUND
The facts are not the subject of significant dispute, and we
take them largely from the Court of Appeal opinion.
A. The Complaints, the Commitment Orders, and
the Information
On March 7, 2016, a felony complaint was filed at the
Fresno County Superior Court and assigned case number
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Opinion of the Court by Jenkins, J.
F16901499 (magistrate case 1499).2 The complaint charged
defendant with: (1) unlawfully driving or taking a vehicle after
having suffered three prior vehicle theft convictions (Veh. Code,
§ 10851, subd. (a); § 666.5); (2) receiving stolen property (a
motor vehicle) after having suffered three prior vehicle theft
convictions (§§ 496d, subd. (a), 666.5); (3) resisting, obstructing,
or delaying a peace officer or an emergency medical technician
(§ 148, subd. (a)(1)); and (4) possession of burglary tools (§ 466).
The offenses were all alleged to have occurred on March 4, 2016,
and defendant was further alleged to have served two prior
prison terms (§ 667.5, subd. (b)). Defendant was arraigned on
the complaint on March 8, 2016, and he was released on bail.
On May 19, 2016, a different felony complaint was filed at
the Fresno County Superior Court, and it was assigned case
number F16903119 (magistrate case 3119). The complaint
charged defendant with: (1) two counts of unlawfully driving or
taking a vehicle after having suffered three prior vehicle theft
convictions (Veh. Code, § 10851, subd. (a); Pen. Code, § 666.5),
(2) two counts of receiving stolen property (a motor vehicle) after
having suffered three prior vehicle theft convictions (§§ 496d,
subd. (a), 666.5); and (3) resisting, obstructing, or delaying a
peace officer or an emergency medical technician (§ 148, subd.
(a)(1)). The offenses were all alleged to have occurred on May
2
Although the complaint was filed at the superior court, it
was technically filed “with the magistrate,” not with the
superior court itself. (§ 806.) Subject to limited exceptions, the
first pleading that invokes the superior court’s jurisdiction in a
felony case is the information or the indictment. (§§ 682, 737,
739, 860, 944.) The distinction between magistrate proceedings
and trial court proceedings is significant here. Therefore, for the
sake of clarity, we use the term “magistrate case” when
discussing proceedings that occurred before a magistrate.
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Opinion of the Court by Jenkins, J.
17, 2016, and defendant was further alleged to have served two
prior prison terms (§ 667.5, subd. (b)) and to have committed the
May 17 offenses while released on bail in magistrate case 1499
(§ 12022.1). Defendant was arraigned on the latter complaint
on May 24, 2016.
The preliminary hearing in magistrate case 3119 took
place on November 16, 2016. The magistrate held defendant to
answer on all charges, and arraignment on an information was
scheduled for December 1, 2016. The preliminary hearing in
magistrate case 1499 took place six days later, on November 22,
2016. The magistrate again held defendant to answer on all
charges, and arraignment on an information was again
scheduled for December 1, 2016.
On November 29, 2016, within 15 days of both
commitment orders (see §§ 739, 860 [imposing a 15-day time
limit]), the People attempted to file a single combined
information bearing both magistrate case numbers, with
magistrate case 3119 designated as the lead case.3 Counts 1
through 4 of the combined information tracked the charges upon
which defendant was held to answer in magistrate case 1499,
and counts 5 through 7 reflected the charges upon which
defendant was held to answer in magistrate case 3119. The
information was initially rejected by the clerk’s office. On the
3
As noted on page 3, footnote 2, ante, and as will be
discussed in detail later in this opinion, magistrate proceedings
and trial court proceedings are institutionally distinct
proceedings. Therefore, there is no reason why an information
needs to be given the same case number as the magistrate
proceeding on which the information relies. Nonetheless, the
practice in Fresno County seems to be to give the two
proceedings the same case number.
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Opinion of the Court by Jenkins, J.
face page of the information, a file stamp bearing the date
“November 29, 2016” is crossed out by hand, and the cross-out
is initialed, suggesting that someone in the clerk’s office raised
a question about the form of the pleading. The same information
was then filed two days later, on December 1, 2016 (still within
15 days of both commitment orders), and the word
“CONSOLIDATED” was written by hand above the word
“INFORMATION.”4
B. Objection to Combined Information at the
Arraignment
Defendant was scheduled to be arraigned on the joint
information on the same day as its filing, but a complication
arose regarding defendant’s representation. The public
defender’s office had earlier declared a conflict in magistrate
case 3119, but not in magistrate case 1499, and therefore
“conflict counsel” had been appointed to represent defendant in
magistrate case 3119. But the filing of an information initiates
a new proceeding that is institutionally distinct from the
magistrate proceeding, and therefore defense counsel is
appointed anew at the arraignment on an information. (See
Lempert v. Superior Court (2003) 112 Cal.App.4th 1161, 1170–
1171; see also § 987.1.) Because the information filed in this
case combined the charges from the two magistrate proceedings,
4
The Court of Appeal dissent explains that “the clerk’s
office rejected the information and sent it to the court
department where separate arraignments in both cases were
scheduled, so that the matter of ‘consolidation’ could be
‘addressed’ by the court.” (Henson, supra, 28 Cal.App.5th at p.
515, dis. opn. of Smith, J., fn. omitted.) The dissent further
states that the judicial assistant in the arraignment department
accepted the information for filing and wrote the word
“CONSOLIDATED” on its face page. (See ibid.)
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Opinion of the Court by Jenkins, J.
and because the public defender’s office had declared a conflict
in magistrate case 3119, the deputy public defender requested a
continuance to make a conflict determination.
At the hearing a week later, on December 8, the deputy
public defender stated that her office would need to “conflict off”
the case if the two magistrate cases were combined into a single
trial court case. Conflict counsel then asked whether the
arraignment judge was willing to hear her oral objection to the
information. Conflict counsel took the position that the charges
from the two magistrate cases could not be combined into a
single information without a consolidation order. In response,
the arraignment judge expressed his view that the Penal Code
permitted the People to file joint pleadings without leave of the
court. After some discussion, the matter was continued for
another week.
At the hearing on December 15, conflict counsel again
argued that a consolidation order was required to combine
charges from different magistrate cases. The arraignment judge
then sought guidance from conflict counsel as to the proper
vehicle to bring the issue before the court, noting that at an
arraignment the law only permits a defendant to enter a
demurrer or a plea.5 The arraignment judge stated that he was
“not unsympathetic” to conflict counsel’s argument, but he did
not know how the issue could be raised except by entering a plea
and then filing a motion to sever (see § 954), or by demurrer on
5
Section 1002 provides: “The only pleading on the part of
the defendant is either a demurrer or a plea.” Section 1003
provides: “Both the demurrer and plea must be put in, in open
Court, either at the time of the arraignment or at such other
time as may be allowed to the defendant for that purpose.”
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the ground of improper joinder (see § 1004, para. (3)). In
response, conflict counsel asked the court simply to reject the
information as filed. But the court denied that request.
The public defender’s office then declared a conflict, and
conflict counsel was appointed to represent defendant as to all
the charges in the information. Defendant was arraigned and
pleaded not guilty. The judge set a trial date “[o]n case [sic]
ending 119 and 499 that are filed together in one information.”6
C. Defendant’s Section 995 Motion
Conflict counsel next filed a section 995 motion requesting
that the court set aside the information at least in part. Section
995 requires the arraignment court, upon motion, to set aside
an information if, among other things, “the defendant had been
6
As noted, the judicial assistant in the arraignment
department wrote the word “CONSOLIDATED” on the face
page of the information. In addition, the clerk’s minutes for
magistrate case 1499 state: “Court orders case consolidated. All
proceedings will be recorded in: F16903119.” Similarly, the
clerk’s minutes for magistrate case 3119 state: “Court orders
this case as lead case with case Fl6901499 consolidated into this
case.” Finally, docket entries were made indicating that the two
cases had been consolidated. (See, e.g., Henson, supra, 28
Cal.App.5th at p. 515, dis. opn. of Smith, J.) The record,
however, includes no formal order, either written or oral,
consolidating the two cases. In the context of discussing
judgments, we have said that the entry of minutes is “a clerical
function” and “a discrepancy between the judgment as orally
pronounced and as entered in the minutes is presumably the
result of clerical error.” (People v. Mesa (1975) 14 Cal.3d 466,
471; see People v. Leon (2020) 8 Cal.5th 831, 855; People v. Farell
(2002) 28 Cal.4th 381, 384, fn. 2.) Here, where the clerk’s
minutes state that the trial court consolidated the cases, but no
consolidation order appears in the record, we must likewise
conclude that the clerk’s minutes are in error.
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Opinion of the Court by Jenkins, J.
committed without reasonable or probable cause.” (§ 995, subd.
(a)(2)(B); see People v. Superior Court (Jurado) (1992) 4
Cal.App.4th 1217, 1226.) Insisting that only the record of one of
the preliminary examinations could be considered in resolving
the section 995 motion, conflict counsel argued that defendant
had been committed without probable cause regarding several
counts of the combined information. Specifically, counsel
argued there was no evidence presented at the preliminary
examination in magistrate case 3119 to support counts 1
through 4 of the combined information, and, in the alternative,
there was no evidence presented at the preliminary examination
in magistrate case 1499 to support counts 5 through 7 of that
information.
Defendant’s section 995 motion was heard on January 13,
2017. At the outset of the hearing, the motions judge noted that
he had before him two separate case files, one for magistrate
case 1499 and the other for magistrate case 3119. He then asked
the prosecutor whether there was any authority for the
proposition the People could join the charges from two
magistrate cases in a single information, in effect consolidating
the cases (and their files) without the court’s permission. The
judge indicated that he did not believe the law permitted a court
to treat the two preliminary hearing transcripts as if they were
one, and he suggested that a section 995 motion could be used
to raise the issue.
The prosecutor responded that the People did not seek to
consolidate two separate accusatory pleadings. Rather, the
People’s first and only accusatory pleading in the superior court
was the information, and in accordance with section 954’s
joinder clause, the People had properly joined “offenses of the
same class” in that information. (See People v. Landry (2016) 2
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Opinion of the Court by Jenkins, J.
Cal.5th 52, 76 [“ ‘Offenses of the same class are offenses which
possess common characteristics or attributes.’ ”].) The
prosecutor thus viewed the trial court proceeding as a
completely new proceeding, distinct from the earlier magistrate
proceedings. Hence, the filing of the information was, in the
prosecutor’s view, “the first inception of the proceeding,”
bringing section 954’s joinder clause into play. As to the proper
procedural vehicle by which defendant could challenge the
propriety of the information, the prosecutor argued that the
defense could have done so by way of demurrer, asserting an
improper joinder under section 954 (see § 1004, para. (3)), but
having failed to do so, the defendant could not raise a joinder
issue by way of a section 995 motion.
The motions judge rejected the prosecutor’s arguments.
Emphasizing that two separate magistrate cases had been filed
against defendant, the judge stated that the district attorney
could not combine those cases without court approval. The
judge then turned to the specific issue raised by defendant’s
section 995 motion, to wit, the question of probable cause to
support defendant’s commitment on the seven counts of the
combined information. (See § 995, subd. (a)(2)(B).) Because the
two magistrate cases had never been consolidated, the court
considered only the evidence presented at the preliminary
hearing in magistrate case 3119, which the People had
designated as the lead case, and the court ignored the evidence
presented at the preliminary hearing in magistrate case 1499.
As a result, the court found no evidence to support the charges
alleged in counts 1 through 4 of the combined information, and
it dismissed those counts.
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D. Appeal
The People appealed (see § 1238, subd. (a)(1); People v.
Alice (2007) 41 Cal.4th 668, 680), and the Court of Appeal
reversed in a split decision. (People v. Henson (2018) 28
Cal.App.5th 490 (Henson).)
1. Court of Appeal’s Majority Opinion
Although the Court of Appeal reversed the trial court’s
order of dismissal, it did not adopt the reasoning relied on by the
People in the trial court and on appeal. Instead, the Court of
Appeal relied on section 954’s consolidation clause. As noted,
the consolidation clause states that “if two or more accusatory
pleadings are filed in [related] cases in the same court, the court
may order them to be consolidated.” (§ 954, italics added.)
Focusing on the italicized phrase, the Court of Appeal
interpreted the clause as requiring a court order only in that
specified circumstance. Thus, the Court of Appeal interpreted
the clause in a manner that supported the following negative
inference: If two or more accusatory pleadings are filed in
related cases but in some different court from the court where the
matter is pending, a court order is not required for them to be
consolidated, and the district attorney can consolidate them
unilaterally. (See Henson, supra, 28 Cal.App.5th at p. 505.) The
negative inference that the Court of Appeal drew from the
consolidation clause would be more obvious if the clause
provided: “. . . if two or more accusatory pleadings are filed in
[related] cases in the same court, a court order is required for
the court may order them to be consolidated.” Phrased that way,
the clause would suggest that a court order is not otherwise
required, and that is precisely the way the Court of Appeal
construed the clause.
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Opinion of the Court by Jenkins, J.
In support of its interpretation, the Court of Appeal
recognized that it needed to consider how section 954 operated
before court unification.7 Prior to unification, the complaint in
a felony case was filed at the municipal court, although
technically speaking it was filed with a magistrate, not with the
court. (See Koski v. James (1975) 47 Cal.App.3d 349, 354–355.)
After the magistrate held a preliminary examination and issued
a commitment order, the district attorney then filed an
information in the superior court. In the Court of Appeal’s view,
this two-court structure informed the meaning of section 954’s
use of the phrase “in the same court.” The Court of Appeal
reasoned as follows: Before court unification, a court order was
required to consolidate two or more felony complaints because
they were filed “in the same court” (the municipal court), and
likewise a court order was required to consolidate two or more
informations because they, too, were filed “in the same court”
(the superior court), but a court order was not required to allow
the district attorney to consolidate two or more complaints into
a single information because the information and the complaints
were not filed “in the same court.”8 The Court of Appeal further
7
Court unification occurred between 1998 and 2002, and
section 954 has not been changed since 1951.
8
In reaching this conclusion, the Court of Appeal glossed
over the fact that, before court unification, the felony complaint
was not actually filed with the municipal court; rather, it was
filed with the magistrate, who was not acting as an officer of the
municipal court. (See Koski v. James, supra, 47 Cal.App.3d at
pp. 354–355.) Thus, the focus on the phrase “in the same
court” — a focus that was critical to the Court of Appeal’s
reasoning — reflected a misunderstanding of the nature of
magistrate proceedings. This point is discussed in more detail
below, but it is mentioned briefly here to avoid confusion.
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Opinion of the Court by Jenkins, J.
reasoned that if the same rule continued to apply after court
unification, then the district attorney in the present case did not
need a court order to consolidate the felony complaints in
magistrate cases 1499 and 3119 into a single information. (See
Henson, supra, 28 Cal.App.5th at pp. 505–510.)
Having set up the problem in those terms, the Court of
Appeal noted that court unification was intended to effect an
administrative change in the organization of the judiciary, not a
change in criminal procedure. Therefore, although there was,
after court unification, a single court in each county, “ ‘that
single court [still] has two divisions corresponding to the former
municipal and superior courts.’ ” (Henson, supra, 28
Cal.App.5th at p. 510, italics omitted, quoting Lempert v.
Superior Court, supra, 112 Cal.App.4th at p. 1169.) As such, the
phrase “in the same court” continued to have the same practical
meaning both before and after court unification. (See Henson,
at pp. 507–510.) In the words of the Court of Appeal, when
section 954 “refers to two or more accusatory pleadings being
filed ‘in the same court,’ it is referring to two or more such
pleadings being filed at the stage of proceedings historically
conducted in municipal court or at the stage historically
conducted in superior court. Thus, while court permission is
required to consolidate two complaints or two informations,
[court permission] is not required to incorporate two complaints
into a single information where that information is the People’s
first pleading at the superior court stage of proceedings.”
(Henson, at p. 510, fn. omitted.)
Applying its interpretation to the facts of this case, the
Court of Appeal majority concluded that the district attorney
acted properly when filing an information that effectively
consolidated the complaints in magistrate cases 1499 and 3119
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Opinion of the Court by Jenkins, J.
into a single combined information. The Court of Appeal further
concluded that the trial court erred by looking only at the record
of the preliminary examination in magistrate case 3119 to find
no probable cause to support counts 1 through 4 of that
combined information. Accordingly, the Court of Appeal
reversed the trial court’s order of dismissal. (Henson, supra, 28
Cal.App.5th at pp. 513–514.)
2. Court of Appeal’s Dissenting Opinion
The dissenting justice in the Court of Appeal asserted that
the majority had adopted a strained reading of section 954’s
consolidation clause in order to draw the negative inference that
supported its conclusion. (Henson, supra, 28 Cal.App.5th at p.
524, dis. opn. of Smith, J.) In the dissent’s view, the
consolidation clause’s purpose is merely to give courts authority
to consolidate related pleadings; its purpose is not to state the
circumstances in which a consolidation order is required, thus
implying that in other circumstances one is not required. (Id. at
pp. 524, 528–529, dis. opn. of Smith, J.) The dissent also pointed
out that the majority’s interpretation had not been advocated in
the trial court on behalf of the People. (Id. at pp. 522–523, 530,
dis. opn. of Smith, J.) Rather, the prosecutor had relied solely
on section 954’s joinder clause, arguing that the information
could join appropriately related offenses without need for a court
order. (Henson, at pp. 522–523, 530, dis. opn. of Smith, J.) In
rejecting the latter argument, the dissent employed a policy
rationale, noting that the unilateral joinder of offenses that had
been the subject of different preliminary examinations would
lead to unacceptable levels of confusion because the evidence
supporting the information would necessarily be located in
different case files. (Id. at pp. 523, 530, 532–534, dis. opn. of
Smith, J.)
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The dissent also relied on section 739, which provides:
“ ‘When a defendant has been examined and committed . . . it
shall be the duty of the district attorney . . . to file in the superior
court . . . an information against the defendant which may
charge the defendant with either the offense or offenses named
in the order of commitment or any offense or offenses shown by
the evidence taken before the magistrate to have been
committed.’ ” (Henson, supra, 28 Cal.App.5th at p. 519, dis. opn.
of Smith, J., some italics omitted.) In the dissent’s view, the
references in section 739 to “the order of commitment,” “the
evidence,” and “the magistrate” (§ 739, italics added) implied
that each information had to be supported by a single
magistrate proceeding. (See Henson, at pp. 524–527, dis. opn.
of Smith, J.)
II. DISCUSSION
In part II.A., we discuss in general terms the nature and
role of magistrate proceedings. In part II.B., we turn to section
954 and consider whether the joint information filed in this case
was appropriate under that section. Next, in part II.C., we
explain the error of the majority and dissenting opinions in the
Court of Appeal. Finally, in part II.D., we address whether the
trial court here erred when, for purposes of resolving
defendant’s section 995 motion, it looked only at the record of
magistrate case 3119 and found no probable cause to support
charges 1 through 4 of the joint information.
A. The Nature of Magistrate Proceedings and the
Due Process Protections They Afford
In modern criminal practice, we tend to think of a
magistrate as a state official who conducts a preliminary
examination of the People’s case, and that description is
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certainly accurate (see §§ 859b, 860), but the Penal Code defines
the term “magistrate” as “an officer having power to issue a
warrant for the arrest of a person charged with a public offense”
(§ 807). It is true that peace officers often have authority to
make arrests without a magistrate’s warrant (see §§ 836, 849),
and with the growth of modern law enforcement agencies, crime
victims now tend to seek recourse from city police departments
and county sheriff’s offices. But decisions from the 19th century
and the first half of the 20th century make clear that, at one
time, crime victims frequently sought recourse directly from a
magistrate. (See, e.g., People v. McDaniels (1903) 141 Cal. 113;
People v. George (1898) 121 Cal. 492.) The victim of a crime
would approach a magistrate, execute an affidavit describing
the relevant events, and the magistrate would determine, based
on the affidavit and the testimony of any other witnesses,
whether to issue an arrest warrant. (Stats. 1872, Pen. Code,
§§ 811, 813, 814.) Then, after the accused was arrested and
brought before the magistrate (id., § 858), the magistrate would
hold a preliminary examination of the case (id., §§ 860–869) and
decide whether the accused should be “ ‘held to answer’ ” (id.,
§ 872). The word “held” in this context was employed in a quite
literal sense; being “ ‘held to answer’ ” meant being committed
to the custody of the county sheriff pending the outcome of a
court trial (id., § 872; see id., §§ 872, 876, 877), and once that
commitment order issued, it was the duty of the district attorney
to file an information in the superior court within 30 days,
initiating a court proceeding to determine whether the accused
was guilty of the charged offense (id., § 809).
Today, crime victims rarely approach a magistrate
directly, but the magistrate’s formal role has not changed, and
what this history makes clear is that the proceeding before the
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magistrate is not merely the early stage of a trial court
prosecution. Rather, it is a completely independent proceeding
that is primarily concerned with the arrest and temporary
detention of the defendant. Moreover, at one time, the
magistrate proceeding could be initiated by a private party
acting without the concurrence of any elected prosecutorial
authority, much as today a private party can file a police report
without the concurrence of any elected prosecutorial authority.
This practice changed in 1972, when the Court of Appeal held
that due process requires that the local district attorney approve
the filing of a criminal complaint. (See People v. Municipal
Court (Pellegrino) (1972) 27 Cal.App.3d 193, 205–206.) But
before 1972, it was not uncommon for the complainant who
executed a criminal complaint to be the victim of the alleged
crime, a witness, or a peace officer. (See § 806 [requiring that a
felony complaint be subscribed by the complainant]; cf. § 739
[requiring that an information be subscribed by the district
attorney].)
Consistent with the distinct and limited role of the
magistrate, the office of magistrate is institutionally separate
from any court. This point tends to be obscured in modern
practice because the felony complaint that initiates the
magistrate proceeding is filed at the court, but as a technical
matter, it is filed with the office of magistrate, not with the court
itself, and the judge who holds the preliminary hearing sits as a
magistrate, not as a judge. The Court of Appeal explained this
point in some detail in Koski v. James, a case that was decided
when municipal court judges served as magistrates. The court
said: “A magistrate is purely a creature of statute, the holder of
a statutory office separate and distinct from the elective office of
judge. [Citations.] . . . [¶] ‘When a judge of a particular judicial
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district acts in the capacity of a magistrate, he does not do so as
a judge of a particular court but rather as one who derives his
powers from [statute]. [Citation.] By initiating proceedings
before magistrates, no trial jurisdiction of any court is invoked.’
[Citation.] [¶] . . . [¶] . . . [¶] Although the office of magistrate
is an office which one holds under [statute] by virtue of being a
judge, it is a different office from that of judge and is one
conferred by statute not by district election. Preliminary felony
proceedings in any judicial district do not invoke the jurisdiction
of the elected judge but of the magistrate.” (Koski v. James,
supra, 47 Cal.App.3d at pp. 354–355, fn. omitted.)
In summary, the magistrate’s primary role relates to a
defendant’s arrest and detention pending a court trial, and the
magistrate represents the office of magistrate, not a court.
Therefore, the proceeding that commences after the magistrate
has issued a commitment order is not merely the next stage in
a single ongoing trial court prosecution; rather, it is the
beginning of that prosecution. (See, e.g., People v. Tideman
(1962) 57 Cal.2d 574, 579; cf. § 804 [defining “prosecution”
specially, and more broadly, for purposes of applying various
statutes of limitations].)9
The latter point is brought into relief when we consider
the constitutional protections that govern the initiation of
criminal prosecutions. As the Massachusetts Supreme Judicial
Court explained over 160 years ago: “The right of individual
9
The fact that trial court proceedings are institutionally
distinct from magistrate proceedings explains why defense
counsel must be appointed anew on the date set for the
arraignment on the information. (See § 987.1; Lempert v.
Superior Court, supra, 112 Cal.App.4th at pp. 1170–1171.)
17
PEOPLE v. HENSON
Opinion of the Court by Jenkins, J.
citizens to be secure from an open and public accusation of
crime, and from the trouble, expense and anxiety of a public
trial, before a probable cause is established by the presentment
and indictment of a grand jury, in case of high offences, is justly
regarded as one of the securities to the innocent against hasty,
malicious and oppressive public prosecutions, and as one of the
ancient immunities and privileges of English liberty.” (Jones v.
Robbins (1857) 74 Mass. 329, 344.) In California, however,
grand jury indictment is not required; rather, felony
prosecutions can be “by indictment or information.” (§ 682,
italics added.) Because indictment by a grand jury protects such
an important liberty interest, it follows that comparable
protections apply when a felony is prosecuted by information,
and indeed that is so.
It has long been held that the Fifth Amendment’s
guarantee of indictment by grand jury does not apply to the
states. (See Hurtado v. People of State of Cal. (1884) 110 U.S.
516 (Hurtado).) In Hurtado, the high court reasoned that so
long as a state provides, in advance of instituting a felony
prosecution, some threshold procedure that comports with
“fundamental principles of liberty and justice,” the Fourteenth
Amendment’s due process guarantee is satisfied. (Id. at p. 535.)
But the threshold procedure, whatever it might be, must be
adequate “ ‘to secure the individual from the arbitrary exercise
of the powers of government.’ ” (Id. at p. 527, quoting Bank of
Columbia v. Okely (1819) 17 U.S. 235, 244.)10 The Hurtado court
10
The dissent describes the distinction between the
threshold procedure and any subsequent court trial as merely a
“technical characterization” “of when a felony proceeding
18
PEOPLE v. HENSON
Opinion of the Court by Jenkins, J.
then discussed the magistrate proceeding that, under California
law, precedes the filing of an information. Upholding
California’s practice, the Hurtado court declared: “[W]e are
unable to say that . . . proceeding by information, after
examination and commitment by a magistrate, certifying to the
probable guilt of the defendant, with the right on his part to the
aid of counsel, and to the cross-examination of the witnesses
produced for the prosecution, is not due process of law.” (Id. at
p. 538.)
What Hurtado makes clear is that (1) the filing of a felony
complaint with a magistrate, (2) the magistrate’s preliminary
examination of the case, and (3) the magistrate’s commitment
order, while being in some sense the initiation of a criminal case
(see People v. Martinez (2000) 22 Cal.4th 750, 754; In re Harris
(1989) 49 Cal.3d 131, 136–137), are components of a threshold
proceeding that precedes the formal trial court prosecution of
the defendant and that ensures that the district attorney or
other prosecutorial authority does not abuse his or her power.
begins.” (Dis. opn. of Kruger, J., post, pp. 13, 15.) The dissent
also argues that the institutional separation between
magistrate proceedings and trial court proceedings is “not
unassailable” (id. at p. 13), and it cites a long list of authorities
in an effort to support this proposition (id. at pp. 13–14 & 14–
15, fn. 4). But the purpose of the threshold proceeding in front
of the magistrate is to protect individuals from the arbitrary
exercise of governmental power. (Hurtado, supra, 110 U.S. at p.
527.) We do not think the word “technical” properly
characterizes the high court’s important due process holding in
Hurtado. And, by suggesting that there is only one continuous
court proceeding that begins with the filing of a felony complaint
and ends with a trial, the dissent casts doubt on the reasoning
of Koski v. James, supra, 47 Cal.App.3d 349, but it fails to
explain why Koski v. James is wrong.
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PEOPLE v. HENSON
Opinion of the Court by Jenkins, J.
(See People v. Martinez, at p. 763 [“Although at first glance a
felony complaint may appear to be a ‘formal charge,’ it is not a
document upon which a defendant may be subjected to trial”];
Jones v. Superior Court (1971) 4 Cal.3d 660, 664 [recognizing
“the constitutional mandate which ‘protects a person from
prosecution in the absence of a prior determination by either a
magistrate or a grand jury that such action is justified’ ”]; People
v. Tideman, supra, 57 Cal.2d at p. 579 [“The prosecution (with
the exceptions not here material) commences when the
indictment or information is filed in the superior court . . . .”];
see also Hurtado, supra, 110 U.S. at pp. 537–538.)11 For this
reason, the felony complaint that initiates this threshold
proceeding does not need to be “subscribed” (i.e., signed) by the
district attorney (§ 806), and the proceeding does not invoke the
jurisdiction of any court (§ 813, subd. (a)).
Significantly, the threshold nature of this proceeding is
not just a matter of legal doctrine. From the accused’s point of
view, the proceeding before a magistrate does not carry with it
the same significance as a trial court prosecution, in that “the
filing of a felony complaint, unlike indictment or accusation by
information, does not threaten oppressive pretrial
incarceration. The time constraints within which the
preliminary hearing must be conducted or the complaint
11
It is true that under section 739, “an information . . . may
charge the defendant with . . . any offense or offenses shown by
the evidence taken before the magistrate to have been
committed,” and therefore after the preliminary hearing, the
district attorney can charge new offenses and even offenses
rejected by the magistrate. But the law “does not permit the
district attorney to ignore material factual findings of the
magistrate.” (Jones v. Superior Court, supra, 4 Cal.3d at p. 666;
see id. at pp. 666–668.)
20
PEOPLE v. HENSON
Opinion of the Court by Jenkins, J.
dismissed and the defendant released (§ 859b) ensure that the
defendant is not subjected to extended anxiety or public
opprobrium, and by giving the defendant immediate notice of
the charge and opportunity to defend avoid prejudice to the
defense.” (Serna v. Superior Court (1985) 40 Cal.3d 239, 257.)
B. Section 954’s Joinder Clause
In considering whether section 954’s joinder clause
permits the joint information that the district attorney filed in
the present case, it is worth noting that California has long
adhered to a policy of promoting judicial economy through the
joinder of appropriately related offenses, subject to severance as
necessary to protect the interests of the defendant. (See People
v. Ochoa (1998) 19 Cal.4th 353, 409 [“ ‘Joinder of related
charges . . . ordinarily avoids needless harassment of the
defendant and the waste of public funds which may result if the
same general facts were to be tried in two or more separate
trials . . . .’ ”]; see generally McDonald, Prejudicial Joinder
under California Penal Code Section 954: Judicial Economy at
a Premium (1989) 20 McGeorge L. Rev. 1235.)
Moreover, prior to 1951, section 954 expressly allowed
precisely what the district attorney did here. That is, it allowed
the district attorney to join related felony offenses in a single
“information” without the necessity of obtaining a court order.
The statute then provided in relevant part: “An indictment,
information, or complaint may charge two or more different
offenses connected together in their commission, or different
statements of the same offense[,] or two or more different
offenses of the same class of crimes or offenses, under separate
counts, and if two or more indictments or informations are filed
in such cases the court may order them to be consolidated.”
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PEOPLE v. HENSON
Opinion of the Court by Jenkins, J.
(Stats. 1927, ch. 611, § 1, p. 1042, italics added.) Importantly,
nothing in the pre-1951 version of the statute suggested that the
joinder of related felony offenses in a single information was
only permitted if the offenses had already been joined in
magistrate proceedings. Indeed, such a limitation would have
made no sense since magistrate proceedings were not (and are
not) court proceedings, and section 954 originally dealt only with
pleadings filed in a court.12 Moreover, prior to 1972, magistrate
proceedings could be initiated by a private party acting without
the concurrence of the district attorney. If multiple crime
victims filed multiple felony complaints alleging related
offenses, the district attorney’s only opportunity to exercise his
or her express right to join those offenses was when filing the
information.
Notably, section 954 made clear that if the district
attorney filed multiple informations alleging related offenses,
12
Before 1927, section 954 applied exclusively to court
proceedings. In 1927, however, section 954’s joinder clause was
amended to replace “indictment or information” (Stats. 1915,
ch. 452, § 1, p. 744) with “indictment, information, or complaint”
(Stats. 1927, ch. 611, § 1, p. 1042, italics added), thus making
the joinder clause applicable to magistrate pleadings. But
nothing about that change suggests an intent to restrict the
already existing power to join related offenses in court
pleadings, or to make joinder at the information stage
dependent on a prior joinder at the complaint stage. The dissent
expresses concern about the authority of magistrates to
consolidate complaints under section 954’s consolidation clause,
which only refers to the “court.” (§ 954; see dis. opn. of Kruger,
J., post, pp. 14–15, fn. 4.) That issue is not before us, and
nothing in our opinion should be read to suggest that we have
decided the issue.
22
PEOPLE v. HENSON
Opinion of the Court by Jenkins, J.
court action was required to consolidate them.13 This
requirement was not inconsistent with the district attorney’s
unilateral authority to join related offenses in a single pleading,
because once multiple pleadings are pending before a court, the
court has an interest in controlling its own docket. But the pre-
1951 version of section 954 only authorized court consolidation
of “two or more indictments or informations,” not two or more
complaints. To understand the latter limitation, it is necessary
to consider the structure of the California criminal courts before
court unification. At that time, misdemeanors and infractions
were, with few exceptions, prosecuted by complaint filed in the
municipal court (former § 740, Stats. 1951, ch. 1674, § 6, p. 3831;
former § 1462, Stats. 1976, ch. 1288, § 21, p. 5765), whereas
felonies were prosecuted by indictment or information filed in
the superior court (former § 737, Stats. 1987, ch. 828, § 49,
p. 2593). (See People v. Frederickson (2020) 8 Cal.5th 963, 994;
In re McKinney (1968) 70 Cal.2d 8, 13.) Therefore, because the
pre-1951 version of section 954 only authorized the
13
The dissent frequently refers to the consolidation of
charges, arguing that here the district attorney was able to
consolidate charges without the requisite court permission. (See
dis. opn. of Kruger, J., post, pp. 1–7, 10–11, 17.) We disagree.
Section 954 does not discuss the consolidation of “charges”;
rather, it discusses the consolidation of “pleadings” filed in a
“court,” requiring court permission to do so. But magistrate
proceedings are not court proceedings — a point the dissent
discounts (see pp. 18–19, fn. 10, ante) — and if no pleadings have
been filed in a court, then there is no pending court proceeding
and nothing for a court to consolidate. Of course, once the first
pleading is filed in a court, a court proceeding begins, but at that
point, section 954’s joinder clause (not its consolidation clause)
comes into play, allowing the joinder of any appropriately
related offenses, and not requiring court permission to do so.
23
PEOPLE v. HENSON
Opinion of the Court by Jenkins, J.
consolidation of “two or more indictments or informations,” the
statute did not give the municipal court any express authority
to consolidate pleadings.
In 1951, section 954 was amended to assume its present
form. The sentence discussed above was amended to read: “An
indictment, information, or complaint accusatory pleading may
charge two or more different offenses connected together in their
commission . . . or two or more different offenses of the same
class of crimes or offenses, under separate counts, and if two or
more indictments or informations accusatory pleadings are filed
in such cases in the same court, the court may order them to be
consolidated.” (§ 954, Stats. 1951, ch. 1674, § 45, p. 3836.) As is
readily apparent, the generic term “accusatory pleading” was
substituted for the specific types of pleadings that the prior
version of the statute had named, but the use of that generic
term — a term that includes misdemeanor complaints — meant
that, as a result of the 1951 amendment, section 954 expressly
granted municipal courts the power to consolidate pleadings.
That new rule was consistent with the general purpose of the
1951 amendment, which was to make the same criminal
procedures applicable at all court levels. (See Legis. Counsel,
Rep. on Sen. Bill No. 543 (1951 Reg. Sess.) July 12, 1951, p. 12.)
In addition, to maintain the strict separation of
misdemeanor jurisdiction from felony jurisdiction, the 1951
amendment to section 954 also added the phrase “in the same
court.” The addition of that phrase meant that a municipal
court could consolidate accusatory pleadings filed in the
municipal court (i.e., misdemeanor complaints), and a superior
court could consolidate accusatory pleadings filed in the
superior court (i.e., indictments and informations), but neither
court could consolidate pleadings filed in their respective courts
24
PEOPLE v. HENSON
Opinion of the Court by Jenkins, J.
with those filed in the other. Thus, the phrase “in the same
court” maintained the jurisdictional boundary between the
superior courts and the inferior courts.14
These jurisdictional lines began to blur in 1992 (see People
v. Frederickson, supra, 8 Cal.5th at p. 995 [describing a 1992
amendment that slightly broadened the jurisdiction of the
municipal and superior courts]), and they disappeared
altogether by 2002. In 1994, the voters eliminated the justice
courts by approving Proposition 191, and then in 1998, the
voters approved Proposition 220, permitting unification of the
municipal and superior courts. The unification of these courts
was intended to streamline court administration, and it was
presented to the county courts only as an option. Nonetheless,
by 2002 the judges in all of California’s counties had opted to
unify their courts, with the result that each county then had
only a superior court.
With the advent of court unification, an accusatory
pleading — whether charging a felony or a misdemeanor — was
filed in the superior court. However, in many respects, court
unification did not bring about any significant change in
14
In Kellett, this court recognized an exception to this
jurisdictional boundary. We said: “Section 954 . . . authorizes
the joinder of a misdemeanor count and a felony count in a
prosecution in the superior court.” (Kellett v. Superior Court of
Sacramento County (1966) 63 Cal.2d 822, 826, fn. 3, italics
added; see In re McKinney, supra, 70 Cal.2d at p. 13 [recognizing
the superior court’s jurisdiction to adjudicate a joined
misdemeanor count].) This exception, based on the joinder
clause of section 954, did not change the rule that a court could
only consolidate pleadings filed “in the same court” (§ 954),
meaning that the superior court could not consolidate a
municipal court complaint with a superior court information.
25
PEOPLE v. HENSON
Opinion of the Court by Jenkins, J.
criminal procedure. For example, before court unification,
judges (then of the municipal courts) sat as magistrates to hold
preliminary hearings in felony cases, and after court unification,
judges (now of the superior courts) continued to sit as
magistrates for the same purpose. (See People v. Crayton (2002)
28 Cal.4th 346, 359–360.) Likewise, both before and after court
unification, the magistrate did not preside as the judge of any
court, and he or she did not exercise trial jurisdiction. Hence, it
is still the law today that if a defendant enters a guilty plea
before a magistrate, the magistrate — despite being a superior
court judge — must certify the case to the trial court for entry of
judgment. (§ 859a, subd. (a).) Similarly, if the magistrate
conducts a preliminary examination and orders that the
defendant be held to answer (§§ 860, 872), the district attorney
must file an information “in the superior court” (§§ 739, 860).
That filing is necessary because even though the magistrate is
a superior court judge, the superior court is institutionally
distinct from the office of magistrate, which conducted the
preliminary hearing. (Compare § 806 with §§ 739, 860.)
The misapprehension that arose at all stages of the
present case may be attributed, in large part, to court
unification. Before court unification, it was relatively easy to
distinguish magistrate proceedings from trial court proceedings
because they occurred, as an administrative matter, in two
different courts. But after court unification, the felony
complaint that initiates a magistrate proceeding is filed at the
same superior court that later conducts the trial (assuming the
defendant is held to answer), and the magistrate who presides
at the preliminary examination is a superior court judge.
Moreover, the trial court proceeding often bears the same case
number as the magistrate proceeding that precedes it. With
26
PEOPLE v. HENSON
Opinion of the Court by Jenkins, J.
everything taking place under the administrative oversight of
the superior court, it is easy to imagine, as the dissent does (see,
e.g., dis. opn. of Kruger, J., post, pp. 10–11, 13–14, and 14–15,
fn. 4), that the preliminary examination and the trial are
successive stages in a single ongoing proceeding that begins
with the filing of the felony complaint. Not so. Rather, as we
clarified above, the felony complaint is filed “with the
magistrate” (§ 806), not with the court, and the first pleading in
a felony case that is filed with the court — the first pleading that
must be subscribed by the district attorney and that initiates
the actual court prosecution of the defendant — is the
information. It is only with the filing of that information that
the superior court begins to exercise its jurisdiction.
Once the institutional separation between magistrate
proceedings and trial court proceedings is fully appreciated, it
becomes clear that pleadings filed in magistrate proceedings do
not limit the district attorney’s joinder power under section 954,
a statute that is primarily concerned with trial court
proceedings. Since 1951, section 954’s joinder clause has
provided: “An accusatory pleading may charge two or more
different offenses connected together in their commission . . . or
two or more different offenses of the same class of crimes or
offenses . . . .” (§ 954.) The information that initiates a felony
case is without question an accusatory pleading (see § 691), and
therefore under the express terms of section 954, the district
attorney is free to join in that information different offenses
connected in their commission or of the same class, and no court
order is required to that end. The only limitations section 954
imposes on this joinder power concern the way in which the
offenses must be related and the grant of authority to trial
courts to sever joined offenses when necessary to protect the
27
PEOPLE v. HENSON
Opinion of the Court by Jenkins, J.
interests of the defendant. When a law authorizes an act, as
section 954 clearly does, it does not need to expressly authorize
each individual way the act can be carried out. Therefore,
section 954 need not specify that the joinder power extends to
offenses that were the subject of different magistrate
proceedings. Indeed, the contrary rule, limiting joinder to
offenses that were the subject of a single magistrate proceeding,
would ignore the fact that magistrate proceedings are
institutionally distinct proceedings that, prior to 1972, could be
initiated without the concurrence of the district attorney. In
light of the California policy favoring joinder, it would make no
sense for the district attorney’s joinder power at the information
stage to depend on how many felony complaints different
victims of related crimes may have filed. Furthermore, in the
present case there is no indication of sharp practices on the part
of the district attorney. Rather, the offenses at issue here are of
the same class of offense, and their joinder appears to be fully
consistent with the underlying purposes of the joinder statute,
which is to promote judicial economy. Accordingly, we find
nothing improper in the joint information that the district
attorney filed here.15
15
This case is not the first in which a district attorney has
filed a single information joining charges from separate
complaints. (See People v. Lopez (July 23, 2010, A124818)
[nonpub. opn.]; People v. Brewton (July 11, 2002, F036610)
[nonpub. opn.]; see also People v. Cooper (July 30, 2014,
A139419) [nonpub. opn.].) The decisions in these other cases are
not published in the official reports, but without treating them
as legal precedent, we may take judicial notice of their
statements of fact. (See People v. Hill (1998) 17 Cal.4th 800,
847, fn. 9.)
28
PEOPLE v. HENSON
Opinion of the Court by Jenkins, J.
C. The Error of the Court of Appeal
As noted, the Court of Appeal majority relied on section
954’s consolidation clause, not its joinder clause, to find
authority for what the district attorney did in this case. The
Court of Appeal did not interpret section 954’s consolidation
clause as merely defining the circumstances in which a court is
permitted to consolidate multiple pleadings; it also interpreted
the clause as defining the circumstances in which a district
attorney is not permitted to do so. The Court of Appeal
concluded that the district attorney cannot consolidate
pleadings when they are filed “in the same court” as the court
where the consolidation is taking place (§ 954), but the Court of
Appeal concluded that the district attorney is otherwise free to
consolidate pleadings without court approval. (Henson, supra,
28 Cal.App.5th at p. 510.) Based on that reading of section 954,
the Court of Appeal majority further concluded that before court
unification, the district attorney did not need court approval to
consolidate two felony complaints into a single information
because the municipal court where the felony complaints were
filed was a different court from the superior court where the
information was filed. (Henson, at p. 505.) The question the
majority then sought to answer is whether the phrase “in the
same court” continued to serve essentially the same role after
court unification. The majority concluded that it did, arguing
that (1) courts favor an interpretation of statutory language that
gives effect to that language, and (2) court unification was
intended to effect a change in the administration of the courts,
not a change in criminal procedure. On that basis, the Court of
Appeal majority held that after court unification, a district
attorney does not need court approval to consolidate two felony
complaints into a single information because the magistrate
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PEOPLE v. HENSON
Opinion of the Court by Jenkins, J.
stage of the proceeding can be treated as if it were occurring in
a different court from the trial court stage of the proceeding. (Id.
at pp. 507–510.)
But the Court of Appeal overlooked the fact that before
court unification, the felony complaint that initiated the
magistrate proceeding was not filed in the municipal court or in
any court; rather, it was “filed with the magistrate” (§ 806), and
that continues to be true after court unification (ibid.).
Therefore, the phrase “in the same court” was not added to
section 954 to distinguish between magistrate proceedings and
superior court proceedings in felony cases, as the Court of
Appeal concluded. Rather, as discussed above, it was added to
section 954 to prevent the superior court from consolidating a
misdemeanor complaint with a felony information, which would
have eroded the jurisdictional boundary between the superior
courts and the inferior courts.16
But that error aside, we also disagree with the Court of
Appeal’s conclusion that section 954’s consolidation clause, by
defining the circumstances in which a court is permitted to
consolidate pleadings, implicitly authorizes a district attorney
16
Because court unification was optional, some counties
continued to have a two-tiered court system during the years
immediately following approval of Proposition 220 in 1998, and
therefore the changes made to state law to facilitate court
unification did not include deletion of the phrase “in the same
court” from section 954. In counties that continued to have both
municipal and superior courts, the phrase “in the same court”
had the same meaning it had always had, preserving the
jurisdictional boundaries between the two court levels. By 2002,
however, all California counties had unified their courts. At
that point, section 954’s use of the phrase “in the same court”
became surplusage.
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PEOPLE v. HENSON
Opinion of the Court by Jenkins, J.
to consolidate pleadings without court approval in all other
circumstances. (See Henson, supra, 28 Cal.App.5th at p. 510.)
In our view, the more natural reading of section 954’s
consolidation clause — which provides that “the court may order
[pleadings] to be consolidated” (§ 954) — is that it does not
confer any consolidation authority on the district attorney, and
therefore the Court of Appeal’s reliance on the consolidation
clause was misplaced.
We further conclude that the Court of Appeal’s dissenting
opinion is unpersuasive. The dissenting justice opined that the
Penal Code contemplates the following linear progression in
felony cases: (1) the filing of a complaint (along with the
assignment of a single case number and the creation of a single
case file); (2) the arraignment on the complaint; (3) the
preliminary examination; (4) the magistrate’s commitment
order; (5) the filing of the information (having the same case
number and case file as the magistrate proceeding); (6) the
arraignment on the information; (7) the filing of any motions; (8)
the trial; (9) the verdict; (10) the judgment, etc. According to the
Court of Appeal dissent, section 954’s joinder clause operates
primarily at step (1) in this progression, and although it might
also operate at step (5), it does so only when joining offenses that
were already joined at step (1). (See Henson, supra, 28
Cal.App.5th at pp. 525–527, 532, dis. opn. of Smith, J.) We reject
the dissent’s reasoning because it finds no support in the text of
section 954, and because it fails to address, as discussed above,
that magistrate proceedings are institutionally distinct from
trial court proceedings. Because the information in this case
initiated a new proceeding in the superior court — one that was
institutionally distinct from the magistrate proceeding — the
district attorney was free, under section 954’s joinder clause, to
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PEOPLE v. HENSON
Opinion of the Court by Jenkins, J.
join in the information any appropriately related offenses
without the necessity of obtaining a court order. (See p. 23, fn.
13, ante [discussing the dis. opn. of Kruger, J.].)17
In support of its linear one complaint/one information
model of criminal procedure, the Court of Appeal dissent relied
heavily on section 739. As noted, section 739 provides: “When
a defendant has been examined and committed . . . , it shall be
the duty of the district attorney . . . to file in the superior
court . . . an information against the defendant which may
charge the defendant with either the offense or offenses named
in the order of commitment or any offense or offenses shown by
the evidence taken before the magistrate to have been
committed.” (Italics added.) The dissenting justice reasoned
that if two felony complaints are filed, and if, as a result, two
different magistrates issue two different commitment orders
based on two different evidentiary presentations occurring at
two different preliminary examinations, then the various
offenses named in the different commitment orders (or shown
by the different evidentiary presentations) cannot be joined in a
single information because, under section 739, an information
can only charge offenses named in “the” commitment order or
shown by “the” evidence taken before “the” magistrate (§ 739).
(Henson, supra, 28 Cal.App.5th at pp. 524–527, dis. opn. of
Smith, J.)18
17
Many of the arguments made by the dissent in the Court
of Appeal are adopted by the dissent in the present court, and
our critique of the one applies, mutatis mutandis, to the other.
18
To support this argument, the Court of Appeal dissent also
relied on section 1009, which refers to “the evidence taken at the
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Opinion of the Court by Jenkins, J.
Section 739, however, is inapposite on the issue we resolve
here. Section 739 is not a joinder statute; rather, its purpose is
to set forth the place of filing, timing, and general form of the
information, and it references the offenses that may be charged
in the information only to specify that the text of the
commitment order does not limit those offenses. The wording of
section 739 is permissive, not restrictive, allowing the district
attorney to file “any offense or offenses,” whether named in the
commitment order or shown by the evidence presented to the
magistrate. The fact that section 739 refers to “the”
commitment order, “the” evidence, and “the” magistrate must be
considered in the context of the statute’s purpose. Because
section 739 is not concerned with joinder, and because its
purpose is merely to explain the procedural steps that ordinarily
follow after the issuance of a particular commitment order, it is
perfectly natural for the statute to speak of “the” commitment
order, “the” evidence, and “the” magistrate. But the statute does
not preclude the possibility of multiple magistrate proceedings
supporting an information. In that situation, section 739’s
reference to “the” commitment order, “the” evidence, and “the”
magistrate signifies the commitment order, evidence, and
magistrate that corresponds to a particular offense charged in
the joint information. Thus, section 739 was followed to the
letter here. As to magistrate case 1499, the district attorney
filed in the superior court, “within 15 days after the
preliminary examination” (italics added) when discussing the
scope of the district attorney’s authority to amend an
information. (Henson, supra, 28 Cal.App.5th at p. 525, fn. 9, dis.
opn. of Smith, J.) The language of section 1009 tracks the
language in section 739, and what we say here about section 739
applies equally to section 1009.
33
PEOPLE v. HENSON
Opinion of the Court by Jenkins, J.
commitment, an information against the defendant which . . .
charge[d] the defendant with . . . the offense or offenses named
in the order of commitment” for that particular case. (§ 739.)
And the district attorney did the same as to magistrate case
3119. The information that satisfied section 739 as to each
magistrate case was the same information, but nothing in
section 739 prohibits that manner of proceeding.
Importantly, adopting the Court of Appeal dissent’s view
of section 739 would require us to violate a canon of statutory
interpretation, since it would mean that section 739 silently
modifies section 954. Under the reasoning employed by the
dissent, section 954’s plain language permits the joinder of
related charges at the information stage, but section 739 —
which is not even a joinder statute — precludes such joinder.
(See Henson, supra, 28 Cal.App.5th at p. 527, dis. opn. of Smith,
J.) Such a significant modification to section 954 cannot be
based solely on the fact that section 739 refers to “the”
commitment order, “the” evidence, and “the” magistrate. If the
Legislature had intended the joinder clause of section 954 to
depend on there being a previous joinder at the felony complaint
stage, we think it would have said so. It would not, instead,
have expected courts to infer that rule from the use of the
definite article in section 739, a statute that makes no reference
to section 954. Nor would it have expected courts to indulge in
the presumption offered by the dissenting opinion in this court
regarding the application of section 739. (See dis. opn. of
Kruger, J., post, p. 10.)19
19
It is true that section 739 imposes a 15-day time limit for
filing the information (see § 860), and this 15-day time limit
34
PEOPLE v. HENSON
Opinion of the Court by Jenkins, J.
The Court of Appeal dissent also argued that its linear
one complaint/one information model of criminal procedure was
necessary to avoid administrative confusion and related
disruption. (Henson, supra, 28 Cal.App.5th at pp. 523, 530, 532–
534, dis. opn. of Smith, J.) In our view, the administrative
complexities that may arise from the joinder of charges that
were the subject of different magistrate proceedings are no more
daunting than the administrative complexities that arise from a
court’s order consolidating multiple pleadings. We think these
complexities are easily addressed, and therefore we do not think
that considerations of judicial administration are material in
this context. For example, the complexities that arose here were
twofold. First, there was the unusual wrinkle that the office of
the public defender had a conflict as to some of the charges
alleged in the joint information but not as to others. But that
will not be true in most cases, and it is easily handled in the
manner that it was handled here. Second, the clerk’s office in
this case was confused because the filing of a joint information
alleging charges from different magistrate proceedings is
relatively rare, and therefore the pleading that the district
attorney attempted to file in this case was unfamiliar. But in
the future, a district attorney need only cite our opinion, and a
clerk’s office will be able to accept the filing and link the
places substantial constraint on the ability of the district
attorney to join related offenses from different magistrate
proceedings. Specifically, the joint information must be filed
within 15 days of the earliest commitment order. But we see no
reason why this constraint should be interpreted as an
indication that the Legislature did not intend to allow joinder in
those circumstances where the 15-day time limit can be met.
35
PEOPLE v. HENSON
Opinion of the Court by Jenkins, J.
magistrate files with relative ease, just as clerk’s offices
regularly do when cases are consolidated by court order.
Of course, in counties where a trial court proceeding bears
the same case number as the magistrate proceeding that
precedes it, some provision will need to be made for cases in
which the district attorney joins charges from multiple
magistrate proceedings. Perhaps the best solution is the one
that obtained here: The case numbers of all the relevant
magistrate proceedings were listed on the joint information, and
one of those case numbers was designated as the case number
for purposes of the trial court proceeding that the information
was initiating. Likewise, some provision will need to be made
for linking multiple magistrate case files with a single trial court
case file. These are practical concerns that can be easily
addressed at the local level, and the advent of electronic filing
will no doubt facilitate that process. In all events, the
administrative tasks associated with the rule we announce
today do not require us to ignore the plain language of section
954. Accordingly, we decline to adopt the linear
one complaint/one information model for felony prosecutions.20
20
Defendant argues that due process protections preclude
the joinder of related offenses from different magistrate
proceedings. We disagree. Section 954 allows a defendant to
seek severance of joined charges “in the interests of justice and
for good cause shown,” thus protecting defendant’s due process
rights. (See, e.g., People v. Merriman, supra, 60 Cal.4th at p. 46
[“Even when [a reviewing court upholds the denial of a
severance motion, it] must further inquire whether events after
the court’s ruling demonstrate that joinder actually resulted in
‘gross unfairness’ amounting to a denial of defendant’s
constitutional right to fair trial or due process of law.”].)
36
PEOPLE v. HENSON
Opinion of the Court by Jenkins, J.
D. Defendant’s Section 995 Motion
Having determined that Section 954’s joinder clause
supports joinder of counts 1 through 4 of the information, we
consider whether the trial court erred in ruling as to counts 1
through 4 “[t]hat the defendant had been committed without
reasonable or probable cause” (§ 995, subd. (a)(2)(B)). The trial
court found insufficient support for counts 1 through 4 because
it concluded that the record of two separate preliminary
examinations cannot be used to support a single information,
and therefore it only considered the record in magistrate case
3119. In the trial court’s view, the case pending before the
superior court was a continuation of magistrate case 3119, and
magistrate case 1499 was a separate proceeding. The trial court
thought it could not consider the record of a separate proceeding
without an order consolidating the two cases. We reject that
reasoning.
Because defendant did not avail himself of section 954’s
severance option, he cannot challenge the constitutionality of
that section as applied to him. Instead, defendant argues that,
despite the severance option, section 954 is facially
unconstitutional because it places the burden on defendants to
move for severance. Defendant cites no relevant authority for
this argument, which equally calls into doubt the
constitutionality of the Federal Rules of Criminal Procedure.
(See Fed. Rules Crim. Proc., rules 8, 14, 18 U.S.C. [allowing
joinder of appropriately related charges, subject to a motion for
severance].) Moreover, defendant concedes that related charges
may be joined at the felony complaint stage, which would place
him in the same position of needing to move for severance.
Defendant does not explain why joinder at the information stage
requires a different constitutional rule. Finally, defendant
cannot complain that the joint information failed to give him
notice of the charges alleged against him. Accordingly, we reject
defendant’s due process arguments.
37
PEOPLE v. HENSON
Opinion of the Court by Jenkins, J.
As we explain today, a magistrate proceeding is (and has
always been) a separate proceeding from a trial court
proceeding, and therefore the circumstance that the trial court
needed to look at the record of a separate proceeding to resolve
defendant’s section 995 motion is of no legal consequence.
Accordingly, we conclude that when a trial court addresses a
section 995 motion, it is free to consider the records of multiple
magistrate proceedings and no consolidation of those
proceedings, or their records, is necessary. Indeed, if a trial
court were not permitted to do so, then the district attorney’s
broad authority under section 954’s joinder clause to join related
charges in a single information would be unduly constrained.
Therefore, the trial court erred when it looked only at the record
of magistrate case 3119 and found no probable cause to support
charges 1 through 4 of the joint information.
III. DISPOSITION
The judgment of the Court of Appeal is affirmed except
insofar as it directs the consolidation of magistrate case 1499
and magistrate case 3119. In resolving defendant’s section 995
motion on remand, the trial court is free to consider the records
of both magistrate cases, and no consolidation of those cases is
necessary.
JENKINS, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
GUERRERO, J.
38
PEOPLE v. HENSON
S252702
Dissenting Opinion by Justice Kruger
As the dissenting justice in the Court of Appeal observed,
the question of felony charging procedure at issue in this case
“arises from an unusual situation.” (People v. Henson (2018) 28
Cal.App.5th 490, 514 (dis. opn. of Smith, J.) (Henson).) The
majority gives an equally unusual answer.
As a rule, a court order is required to consolidate charges
stemming from different “accusatory pleadings” — a term that
includes both criminal complaints and the informations that
follow. (Pen. Code, § 954; see id., § 691, subd. (c).) But here the
district attorney argues that on the rare occasion when a
defendant is held to answer on two different criminal complaints
within the span of 15 days — the statutory time period for filing
an information after a defendant’s preliminary examination on
a complaint (id., § 739) — a prosecutor may file a single
information charging both sets of offenses, thereby in effect
consolidating the criminal cases without the court leave that
would be required in all other instances.
The majority approves this maneuver, understanding the
result as dictated by language in Penal Code section 954
allowing prosecutors to charge more than one offense in an
information. I do not share this understanding, and so I would
not approve this unusual deviation from standard charging
procedures.
1
PEOPLE v. HENSON
Kruger, J., dissenting
A.
On two separate occasions in early 2016, the district
attorney filed two separate criminal complaints against
defendant Cody Wade Henson, based on separate incidents.
Although the complaints were filed months apart — based on
incidents that likewise occurred months apart — it so happens
that the preliminary hearings in the two cases were held in
back-to-back weeks. The magistrate issued an order holding
Henson to answer to the charges in both cases.
Rather than filing two informations — one for each set of
charges — and asking the court to consolidate the cases, the
district attorney combined charges from both cases in a single
information and presented that “joint” information to the
superior court for filing. This was evidently not a kind of filing
the superior court had seen much before; confusion ensued while
court personnel worked to determine how, precisely, the two
criminal cases against Henson had come to be consolidated
without a court order and what consequences would follow
(including, ultimately, the disqualification of one of Henson’s
defense attorneys). Nor is it a kind of filing any California court
has seen much before. Indeed, the parties here have found no
other example of a similar “joint” information, filed without
court approval, in any reported decision in California judicial
history.
Whether this unusual filing was permissible turns
primarily on two sections of the Penal Code governing the early
stages of felony cases. Penal Code section 739, which governs
the filing of informations, provides: “When a defendant has been
examined and committed, as provided in Section 872, it shall be
the duty of the district attorney of the county in which the
2
PEOPLE v. HENSON
Kruger, J., dissenting
offense is triable to file in the superior court of that county
within 15 days after the commitment, an information against
the defendant which may charge the defendant with either the
offense or offenses named in the order of commitment or any
offense or offenses shown by the evidence taken before the
magistrate to have been committed.” (Pen. Code, § 739 (section
739).)
Penal Code section 954, for its part, contains general
instructions for the handling of cases involving multiple offenses
or multiple statements of the same offense. We are here
concerned only with its first sentence, which contains two
clauses pertaining to the contents of accusatory pleadings. The
first clause — the so-called “joinder clause” — provides that a
single accusatory pleading may charge more than one offense:
“An accusatory pleading may charge two or more different
offenses connected together in their commission, or different
statements of the same offense or two or more different offenses
of the same class of crimes or offenses, under separate counts.”
(§ 954 (section 954).) The “consolidation clause,” for its part,
explains the process by which charges from separate accusatory
pleadings may be consolidated into a single accusatory pleading:
“[I]f two or more accusatory pleadings are filed in such cases in
the same court, the court may order them to be consolidated.”
(Ibid.)
Here is how the statutes ordinarily work in the typical
felony case that is initiated by the filing of a criminal complaint.
(See Pen. Code, § 806 [requirements for filing a criminal
complaint]; In re Harris (1989) 49 Cal.3d 131, 137; Lempert v.
Superior Court (2003) 112 Cal.App.4th 1161, 1168.) Once the
complaint is filed, “a magistrate of the court in which the
3
PEOPLE v. HENSON
Kruger, J., dissenting
complaint is on file” (Pen. Code, § 859) conducts a preliminary
examination to determine whether the charges in the complaint
are supported by probable cause to believe the defendant
committed the offense or offenses, and, if so, issues an order
holding the defendant to answer. (Id., § 872, subd. (a); see
People v. Maldonado (2009) 172 Cal.App.4th 89, 94–95;
Lempert, at pp. 1168–1169.) Under section 739, the People then
have 15 days from the date of this commitment order to file an
information in superior court charging the same offenses or
other offenses shown by the preliminary evidence. (§ 739.) The
defendant is then arraigned — and ultimately tried — on the
charges in the information. (Lempert, at p. 1169; see
Maldonado, at pp. 94–95.)
If the People wish to consolidate the charges contained in
two or more informations (or other “accusatory pleadings . . .
filed in . . . the same court”), they must file a motion. (§ 954; see,
e.g., Belton v. Superior Court (1993) 19 Cal.App.4th 1279, 1281.)
In considering whether to grant the motion and consolidate
pleadings for trial, a court generally “weighs ‘the potential
prejudice’ ” to the defendant “ ‘against the state’s strong interest
in the efficiency of a joint trial.’ ” (People v. Merriman (2014) 60
Cal.4th 1, 37.) The law generally favors the joint trial of related
offenses, but whether to grant consolidation is ultimately within
the discretion of the trial court. (Ibid.)
In this case, the majority agrees with the district attorney
that no court permission was required to combine the charges
from the two complaints filed against Henson into a single
information. The majority reasons, as an initial matter, that the
consolidation clause of section 954 is inapplicable during the 15-
day statutory window between the preliminary examination on
4
PEOPLE v. HENSON
Kruger, J., dissenting
the charges in the complaint and the filing of the information.
And although the majority, unlike the Court of Appeal, does not
then read into the consolidation clause an affirmative
authorization to do what the district attorney did here, the
majority does read such authorization into section 954’s
adjacent joinder clause, which permits a district attorney to
charge more than one offense in an accusatory pleading. The
power to charge more than one offense in a single information,
the majority reasons, necessarily includes the power to charge
different offenses that were the subject of different complaints,
different preliminary examinations, and different commitment
orders, so long as section 739’s 15-day time limit is satisfied with
respect to all charges. (Maj. opn., ante, at p. 2.)
In my view, this conclusion reads too much into section
954’s joinder clause and too little into the broader statutory
context and historical practice. Let’s take the joinder clause
first. Again, that clause simply provides, as relevant here, that
“[a]n accusatory pleading may charge two or more different
offenses” if the offenses are sufficiently related. (§ 954.)
Nothing in this language speaks directly to the question before
us. Certainly the joinder clause permits a district attorney to
charge more than one offense in an information (or in any other
accusatory pleading, for that matter). But contrary to the
majority’s seeming suggestion (maj. opn., ante, at pp. 27–28),
this does not mean the district attorney can charge any two
related offenses the district attorney pleases, in any manner the
district attorney pleases. The joinder clause offers no explicit
authority to charge more than one offense where the relevant
offenses were charged in different complaints, subject to
different preliminary examinations, and the subject of different
5
PEOPLE v. HENSON
Kruger, J., dissenting
commitment orders. Nor does it otherwise address the steps a
prosecutor must follow in filing any pleadings, or the process by
which charges already filed may be combined into a single
pleading for purposes of trial. Other provisions address those
matters, and the joinder clause contains no language purporting
to override other applicable law.
In case there was any doubt, history confirms that the
purpose of the joinder provision was simply to do what it says:
allow the charging of more than one offense in a single
accusatory pleading. Before the joinder clause was added in its
present form in 1915, the California rule was generally that “the
accusatory pleading could charge but one offense.” (People v.
Tideman (1962) 57 Cal.2d 574, 579; see People v. Taggart (1872)
43 Cal. 81, 83 [demurrer to indictment proper “on the ground
that it charges two offenses”].)1 “In 1915, however, section 954
was amended to, for the first time in this state, . . . authorize the
charging in one indictment or information of ‘two or more
different offenses connected together in their commission, or
different statements of the same offense or two or more different
offenses of the same class of crimes.’ ” (Tideman, at p. 580; see
14 Cal.Jur., supra, Indictment and Information, § 50, p. 65.)
The effect of these changes was to abrogate “the former rule
forbidding the charging of more than one offense in an
indictment,” under which “the people might be required at the
1
An earlier amendment to section 954, enacted in 1905, had
authorized the joinder of different offenses or different
statements of the same offense, but only “if all related to the
same act or event.” (14 Cal.Jur. (1924) Indictment and
Information, § 50, p. 65; see also id. at pp. 65–66 [detailing
amendment history of § 954].)
6
PEOPLE v. HENSON
Kruger, J., dissenting
trial to elect upon which charge it would proceed.” (14 Cal.Jur.,
supra, Indictment and Information, § 53, p. 69.) Nothing in this
post-1915 grant of permission to charge multiple offenses
necessarily implies a power to combine previously separate
cases at the information stage, as the district attorney did here.
For more concrete guidance about what procedures a
prosecutor must follow in combining previously separate
charges in a single information, we have to look beyond section
954’s joinder clause. One place to start is the very next clause
of section 954, the consolidation clause, which says that “if two
or more accusatory pleadings are filed in such cases in the same
court, the court may order them to be consolidated.” (Italics
added.) And another place to look is section 739, which contains
instructions specific to the filing of informations. Section 739,
as relevant here, places a “duty” on the district attorney to file
“an information” charging the defendant with the offenses
“named in the order of commitment” or “shown by the evidence
taken before the magistrate to have been committed.” (§ 739,
italics added.) The uses of the singular — “order,” not “orders,”
“magistrate,” not “magistrates” — suggest that a felony
information is based on the evidence adduced at a single
preliminary hearing before a single magistrate. On this
understanding, section 739 works in harmony with both clauses
of section 954: The People can, of course, file more than one
information, and under section 954’s joinder clause, each
information may charge more than one offense based on the
preliminary hearing evidence. If the People then wish to
consolidate charges for trial, they may do so, but they must first
seek the court’s leave under the consolidation clause of section
954.
7
PEOPLE v. HENSON
Kruger, J., dissenting
The majority worries that accepting this straightforward
view of the statutory scheme “would require us to violate a canon
of statutory interpretation, since it would mean that section 739
silently modifies section 954.” (Maj. opn., ante, at p. 34.) But it
violates no canon of statutory interpretation to harmonize two
statutes; indeed we must do so whenever harmonization is
“ ‘reasonably possible,’ ” as it is here. (State Dept. of Public
Health v. Superior Court (2015) 60 Cal.4th 940, 955.)
The Court of Appeal rejected this view for a different
reason. In particular, it dismissed the wording of section 739 as
unilluminating, citing the general interpretive principle that
“ ‘the singular number includes the plural, and the plural the
singular.’ ” (Henson, supra, 28 Cal.App.5th at p. 511, fn. 13,
quoting Pen. Code, § 7.) But the general principle is not an
absolute rule; as Penal Code section 7 itself cautions, “[w]ords
and phrases must be construed according to the context.” (Pen.
Code, § 7, subd. (16); see People v. Rodriguez (2012) 55 Cal.4th
1125, 1133 [the plural does not include the singular where
statutory context indicates otherwise].) And, as particularly
relevant here, we have also declined to apply section 7’s general
singular-includes-the-plural rule where it would “lead to an
interpretation that runs counter to both the legislative purpose
of the statutory scheme and subsequent historical practice.”
(People v. Navarro (2007) 40 Cal.4th 668, 680.) Similar
considerations in this case suggest we ought to read section 739
as it was written, rather than through the lens of section 7.
So read, section 739 describes a linear charging process —
where the offenses charged in the information are the same
offenses shown by the evidence presented at the preceding
preliminary hearing — that matches up with the statute’s
8
PEOPLE v. HENSON
Kruger, J., dissenting
historical operation. The predecessor to section 739 was first
enacted in 1880. As originally enacted, Penal Code former
section 809 provided: “When a defendant has been examined
and committed, as provided in section eight hundred and
seventy-two of this code, it shall be the duty of the district
attorney, within thirty days thereafter, to file in the superior
court of the county in which the offense is triable an information
charging the defendant with such offense.” Former section 809
necessarily referred to a single “such offense” because, as
already noted, from the time former section 809 was enacted in
1880 until 1915, “the accusatory pleading could charge but one
offense.” (People v. Tideman, supra, 57 Cal.2d at p. 579.) This
meant that for the first several decades of former section 809’s
existence, there was no doubt that an information was limited
to charging the offense that had been the subject of a single
preliminary examination and/or commitment order — for the
simple reason that the information could not charge any other
offense in addition to that offense. (See People v. Vierra (1885)
67 Cal. 231, 234 [“[S]ection 809 refers to the offense shown by
the testimony disclosed in the depositions taken on the
preliminary examination before the committing magistrate”];
People v. Nogiri (1904) 142 Cal. 596, 598 [power of prosecutor
under section 809 limited to filing “an information charging the
defendant with the offense for which, after judicial inquiry, he
has been held to answer”]; People v. Bird (1931) 212 Cal. 632,
637 [the “power of the district attorney under section 809 . . .
was confined to the filing of an information charging the offense
designated in the order of commitment”].)
Later, after section 954 was modified to allow for the
charging of more than one offense in a single accusatory
9
PEOPLE v. HENSON
Kruger, J., dissenting
pleading (see p. 6, ante), the Legislature would amend Penal
Code former section 809 accordingly — allowing an information
issued under former section 809 to charge “the offense, or
offenses, named in the order of commitment, or any offense, or
offenses, shown by the evidence taken before the magistrate to
have been committed.” (Stats. 1927, ch. 617, § 1, p. 1045, italics
added.)2 But the Legislature did not alter the language of
former section 809 in any way that would suggest that it also
intended to alter the relationship between the facts presented
at the preliminary examination and the charges brought in the
ensuing information.
Of course, nothing in section 739 expressly forbids filing
an information that draws from the evidence presented at more
than one preliminary hearing. But section 739’s instructions do,
at the very least, presume the information will match the
evidence shown at the preliminary hearing on charges filed in a
criminal complaint. And that presumption likewise fits with the
other relevant piece of section 954, the consolidation clause —
creating a straightforward process for consolidating charges
that have, up to that point in time, been the subject of separate
pretrial proceedings.
The majority’s position, by contrast, reads section 954’s
joinder clause as effectively creating a hidden mechanism for the
de facto consolidation of cases without need for court leave.
2
This change followed a 1927 recommendation by a blue-
ribbon legislative commission to modify former section 809 to
“expressly permit the information to charge either the crime
named in the order of commitment or any offense shown by the
evidence taken before the magistrate.” (Com. for the Reform of
Criminal Procedure, Rep. to Legislature (1927) p. 7.)
10
PEOPLE v. HENSON
Kruger, J., dissenting
Henson’s case provides an illustration of how that consolidation
works in practice: Henson was first charged on March 7, 2016,
when “a complaint was filed in Fresno County Superior Court”
and was assigned “case No. F16901499.” (Henson, supra, 28
Cal.App.5th at p. 495.) The People then commenced a second
case against Henson on May 19, 2016, when “a complaint was
filed in Fresno County Superior Court” and was assigned “case
No. F16903119.” (Id. at p. 496.) When the prosecutor
subsequently “attempted to file with the clerk’s office an
information bearing both case numbers” the “pleading
apparently was rejected, as the file stamp bearing the date of
November 29 was crossed out by hand and initialed.” (Ibid.)
“On appeal, the People represent that after the clerk’s office
rejected the information, the information was presented to the
court clerk/judicial assistant in the arraignment department,
who wrote ‘CONSOLIDATED’ and accepted and filed the
information.” (Id. at p. 497, fn. 3.) The practical result was to
take what had been two criminal cases and make them one
without a court order. But the Legislature created a clear
mechanism for consolidating previously separate criminal cases:
Section 954’s consolidation clause, which requires a motion. 3
The text of section 954 does not mention any other method for
consolidating criminal cases, and there is no reason to think the
Legislature intended the joinder clause to play that role.
Indeed, some skepticism is warranted on this score,
because the de facto consolidation mechanism is a curious one.
3
To be sure, the statutory language speaks of consolidating
“pleadings,” not “cases.” (§ 954.) But cases follow pleadings; the
effect of consolidating accusatory pleadings is to consolidate the
cases to which they pertain. (Cf. maj. opn., ante, at p. 23, fn. 13.)
11
PEOPLE v. HENSON
Kruger, J., dissenting
On the majority’s view, the joinder-clause-based consolidation
mechanism springs into existence only in cases like this one,
where one or more magistrates happen to issue two or more
commitment orders within a roughly two-week window. (See
maj. opn., ante, at p. 4.) As the district attorney acknowledged
at oral argument, it is unusual for two preliminary hearings to
take place within 15 days of one another; filing a single
information on the basis of multiple commitment orders can
occur only if the prosecutor is able to “bring the stars into line.”
And the new mechanism inferred by the majority has a
remarkably short lifespan. After appearing unexpectedly to
surprise the defendant and the court, it then vanishes again
after just 15 days — the Cheshire Cat of procedural rules. I
grant it is not impossible to read section 954 this way, but the
reading does not seem especially likely. Why would the
Legislature have intended to make the question whether court
permission is necessary to consolidate two cases turn on the
happenstance of whether two commitment orders issue within
15 days of each other? Neither the district attorney nor the
majority explains.
Historical practice generally confirms that the joinder
clause has not been understood in the way the district attorney
urges. (See People v. Navarro, supra, 40 Cal.4th at p. 680.)
Indeed, no party has pointed us to any published case, apart
from the decision below, approving the filing practice in which
the prosecutor engaged below — not since 1951, when section
954 was last modified; not since 1927, when the statutory
forerunner to section 739 assumed essentially its present form;
and not since 1915, when section 954 was modified to allow
informations to charge multiple offenses. The majority opinion
12
PEOPLE v. HENSON
Kruger, J., dissenting
does point to a few unpublished cases briefly mentioning —
without much discussion — the filing of an information like the
one in this case. But a small handful of unpublished decisions,
issued over the course of more than a century, does not suffice
to show that the practice has gained any significant acceptance
in the superior courts. (Cf. maj. opn., ante, at p. 28, fn. 15.) And
again, the history of this very case suggests the opposite: The
district attorney’s joint information caused significant
administrative confusion here precisely because the filing was
not consistent with generally accepted procedures.
B.
In approving the joint information in this case, the
majority expresses concern that district attorneys have
sufficient latitude to join related charges at the inception of a
felony proceeding. The majority marks that inception point as
the filing of the information because it is the first step of the
prosecution that by law must be handled by district attorneys,
and only district attorneys, and the first step that takes place in
superior court, by law acting as the superior court.
As a technical matter, the majority’s view of when a felony
proceeding begins is plausible, if not unassailable. (Cf. In re
Harris, supra, 49 Cal.3d at p. 137 [“the general rule” is that “it
is the complaint that initiates felony proceedings”]; Lempert v.
Superior Court, supra, 112 Cal.App.4th at p. 1168 [“the
prosecution commences with the filing of the felony complaint”];
People v. Dominguez (2008) 166 Cal.App.4th 858, 865 [“Prior to
the unification of the trial courts, felony proceedings commenced
in the municipal court with the filing of a complaint”]; People v.
Maldonado, supra, 172 Cal.App.4th at p. 94 [same]; Le Louis v.
Superior Court (1989) 209 Cal.App.3d 669, 679, 683 [“a
13
PEOPLE v. HENSON
Kruger, J., dissenting
preliminary examination can only be properly conceived as a
component proceeding of the criminal action which commences
with the filing of a complaint and can continue through superior
court proceedings, including trial, resulting in judgment,”
meaning that “[p]etitioner’s preliminary examination,” for
which “two separate complaints were consolidated,” occurred “at
an earlier stage of the same prosecution which remains pending
against him in superior court”]; Pen. Code, § 859 [referring to
person “charged with the commission of a felony by a written
complaint” as the “defendant”].)4
4
The same can be said for the majority’s view that “the
felony complaint that initiated the magistrate proceeding was
not filed in the municipal court or in any court.” (Maj. opn., ante,
at p. 30; cf., e.g., Pen. Code, § 859 [“When the defendant is
charged with the commission of a felony by a written complaint
subscribed under oath and on file in a court within the county in
which the felony is triable, he or she shall, without unnecessary
delay, be taken before a magistrate of the court in which the
complaint is on file,” italics added]; In re Geer (1980) 108
Cal.App.3d 1002, 1008 [pointing out the “interchangeable use of
‘court’ and ‘magistrate’ in various other portions of the Penal
Code relating to preliminary proceedings,” including Pen. Code,
§§ 859, 859a, 868, 1002, 1383 & 1388].) Among other things, the
majority’s view that felony complaints are not filed in a court
might imply that magistrates do not have the authority to
consolidate felony complaints under section 954. But reported
case law contains numerous examples of felony complaint
consolidation. (See, e.g., People v. Soper (2009) 45 Cal.4th 759,
769; Price v. Superior Court (2001) 25 Cal.4th 1046, 1051; People
v. Indiana Lumbermens Mutual Ins. Co. (2012) 202 Cal.App.4th
1541, 1544, 1546; Berardi v. Superior Court (2008) 160
Cal.App.4th 210, 223.) I do not understand the majority opinion
to call any of this into question (see maj. opn., ante, at p. 22,
fn. 12); the conceptual distinction it now draws between “courts”
14
PEOPLE v. HENSON
Kruger, J., dissenting
But it is unclear why this technical characterization
should make a substantive difference in how we view the
procedures for combining offenses subject to different
“magistrate cases,” as the majority calls them, in a single
information.5 The majority’s primary response is historical: it
points out that before 1972, felony complaints (unlike felony
informations) could be filed directly by private citizens and did
not have to be signed by the district attorney. The majority
reasons that “[i]f multiple crime victims filed multiple felony
complaints alleging related offenses, the district attorney’s only
opportunity to exercise his or her express right to join those
offenses was when filing the information.” (Maj. opn., ante, at
p. 22.)
To the extent the majority is raising a historical concern
about the purpose the joinder clause would have served in a pre-
1972 case initiated by the filing of citizen complaints, the
concern is unfounded. Under the old, pre-1915 rule, each felony
information could only have charged one offense, no matter how
many offenses the complaint alleged or the evidence at the
preliminary hearing showed. The 1915 enactment of the joinder
clause served the basic purpose of enabling the district attorney
to file more than one charge in the information, based on the
and “magistrates” appears largely limited to the particular
charging issue we confront today.
5
The majority refers to proceedings before the filing of the
information as “magistrate cases” (as opposed, it seems, to the
“real” felony cases that begin afterward). This term is a new
invention (maj. opn., ante, at p. 3, fn. 2); it appears nowhere in
our statutes or case law.
15
PEOPLE v. HENSON
Kruger, J., dissenting
offenses listed in each citizen’s complaint or shown by the
evidence at the preliminary hearing. The district attorney could
then move the court for consolidation of the pleadings before
trial.
To the extent the majority’s concern is instead simply that
the prosecutor must have sufficient opportunity to combine
related offenses for purposes of trial, the concern is misplaced.
To read the relevant statutes as preserving the regular
procedure in all cases does not mean the prosecutor cannot
combine related offenses; it simply requires that the prosecution
seek the court’s permission first.
Adhering to regular procedure for consolidating cases
makes practical sense. It keeps the burden to move for
consolidation of charges where it normally falls — on the
prosecution — rather than shifting the burden to the defendant
to seek severance of charges where a joint trial threatens
significant prejudice to the defendant’s interests. Adhering to
regular procedure also helps to avoid some of the types of
administrative difficulties that emerged in this case as a result
of the district attorney’s unusual filing, including the
disqualification of defense counsel without prior notice to the
defendant or the court and continued delay while the defendant
remained in custody. And adhering to regular procedure
respects the superior courts’ ordinary case management
practices. Ordinarily, case dockets are managed, tracked, and
consolidated pursuant to the regular administrative processes
of the superior courts. But “under the majority’s holding,
[courts] will now be required to merge the relevant case dockets
under a lead case self-designated by the People, something that
16
PEOPLE v. HENSON
Kruger, J., dissenting
heretofore occurred only pursuant to court order.” (Henson,
supra, 28 Cal.App.5th at p. 533 (dis. opn. of Smith, J.).)
It is certainly true, as the majority says, that the superior
courts can adopt new administrative rules for the rare
circumstance in which prosecutors file informations like this
one. (See maj. opn., ante, at pp. 35–36.) Such rules may well
help ameliorate the disruption caused by disappearing case
numbers, criminal cases effectively consolidated without a
consolidation motion, and defense attorneys on previously
separate cases suddenly finding themselves working on the
same, now-unified case. On the whole, however, I am not
persuaded that the law requires the superior courts to face these
problems — not even in the rare situation when the stars align
to allow for two preliminary examinations and commitment
orders in a single 15-day period.
There is a simpler, more straightforward answer possible
here. Felony informations may indeed charge multiple offenses,
as provided by section 954. But they may charge only those
offenses contained in a single commitment order or shown by
the evidence at a single preliminary hearing, as provided by
section 739. The district attorney is not without recourse: after
the information is filed in a particular case, the court may, upon
the request of the district attorney and after conducting the
requisite inquiry, “order the consolidation of that case with
another case, or other cases, in the same posture” — as courts
regularly do. (Henson, supra, 28 Cal.App.5th at p. 527 (dis. opn.
of Smith, J.).) The critical point is that consolidation is a matter
for the court to decide after full consideration of a filed motion,
not for the district attorney to decide unilaterally.
17
PEOPLE v. HENSON
Kruger, J., dissenting
Taken as a whole, this long-standing set of procedures
provides a simple, streamlined, and well-understood framework
for felony charging. I see no reason to deviate from those
procedures here. And so, with respect, I dissent from the
majority’s approval of the unusual filing in this case.6
KRUGER, J.
We Concur:
LIU, J.
GROBAN, J.
6
The majority’s analysis of Henson’s Penal Code section
995 motion (maj. opn., ante, at pp. 37–38) depends on its view
that the filing of the joint information was proper (see id. at
p. 2). As a result, the majority does not address alternative
grounds for affirming the Court of Appeal’s judgment, including
the possibility that Henson forfeited his objection to the
information by failing to demur (see Henson, supra, 28
Cal.App.5th at pp. 503–504 & fns. 6, 8). I accordingly do not
address those alternative grounds either. For reasons already
explained, I respectfully disagree with the reasons the majority
does give for affirming the judgment.
18
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion People v. Henson
__________________________________________________________
Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published) XX 28 Cal.App.5th 490Review Granted (unpublished)
Rehearing Granted
__________________________________________________________
Opinion No. S252702
Date Filed: August 1, 2022
__________________________________________________________
Court: Superior
County: Fresno
Judge: W. Kent Hamlin
__________________________________________________________
Counsel:
Lisa A. Smittcamp, District Attorney, Robert Whalen, Chief Deputy
District Attorney, and Douglas O. Treisman, Deputy District Attorney,
for Plaintiff and Appellant.
Barbara A. Smith, under appointment by the Supreme Court, for
Defendant and Respondent.
C. Matthew Missakian and Stephen K. Dunkle for California
Attorneys for Criminal Justice as Amicus Curiae on behalf of
Defendant and Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Douglas O. Treisman
Deputy District Attorney
2100 Tulare Street
Fresno, CA 93721
(559) 600-4387
Barbara A. Smith
Attorney At Law
8359 Elk Grove Florin Road, #103-305
Sacramento, CA 95829
(619) 559-6427