People v. Sanders , 102 Cal. App. 237 ( 1929 )

I dissent from the judgment. Particularly am I unable to agree that the questioned provisions of section 809 of the Penal Code are not in violation of section 8, article I, of the Constitution of this state. By the terms of the statute, in the matter of preparing an information presumably based upon a commitment, the district attorney is authorized to exercise appellate jurisdiction over the judgment rendered by a committing magistrate. In the information the district attorney may charge not merely a lesser offense included within that for which the defendant was held to answer to the Superior Court, but may charge even a greater offense; or going still farther, as illustrated in the instant case, the district attorney may accuse the defendant with the commission of an offense entirely unrelated to that of which he was originally accused, or for which he was committed by the magistrate. As a further illustration, suppose that in a given case a defendant were charged with the crime of burglary and the evidence adduced on the preliminary examination showed that after the defendant had broken into the house which was burglarized, he had suddenly been confronted by a young woman, whom he overpowered, and then, without stealing anything or further molesting the young woman — because of his fear of detection and arrest, he had made his escape from the house; and suppose that on the preliminary examination of the defendant, the committing magistrate had held the defendant to answer to the Superior Court for the crime of burglary: Under the provisions of section 809 of the Penal Code, the district attorney might wholly disregard the judgment of the magistrate, as evidenced by the terms of the commitment, substitute his own judgment for that of the magistrate, and file an information by which the defendant would be charged with the crime of attempted rape. Although, as remarked in some authorities, it may be that because of the fact that with certain exceptions, owing to the fact that a justice of the peace in order to hold his office is not required to be licensed to practice law in all the courts of this state, and hence from a lawyer's standpoint ordinarily would not be as well qualified as a district attorney would be to correctly pass judgment upon the nature of the offense committed by the defendant, — it should not be overlooked that within certain defined areas, the committing magistrate must be a qualified lawyer, and consequently in such case possibly may be a better lawyer than the district attorney. Further than that, by the provisions of section 808 of the Penal Code, besides justices of the peace, the judges of the Municipal Court, the judges of the Superior Court and the justices of the Supreme Court are magistrates; and if perchance a justice of the Supreme Court should sit as a committing magistrate, perhaps it might appear incongruous that a district attorney of average ability and learning in the law should have the power to overrule the judgment of such a magistrate in the matter of the determination of the particular crime for which a defendant should be prosecuted. So much in answer to the assigned reason for the enactment of the statute in question.

In the case of People v. Anthony, 20 Cal.App. 586 [129 P. 968, 969], the provisions of section 1008 of the Penal Code were given consideration. By the terms of that statute, in force at that time, the district attorney was authorized to amend an indictment or an information "where it can be done without prejudice to the substantial rights of the defendant." In commenting upon the constitutionality of the statute, in part, the court said: ". . . If the code section under discussion purported to permit an amendment to anything but the mere formalallegations of an indictment we would have no hesitation inholding such a procedure unconstitutional. The Constitution contemplates that an indictment shall be found and presented by a grand jury (Const., art. I, sec. 8); and to permit the district attorney to amend an indictment in matters of substance would in effect render the indictment no longer the finding of the grand jury. . . ."

The leading case in this state, which really considers the constitutionality of the statute by which a district attorney is authorized to substitute his judgment for that of the committing magistrate regarding the offense for which the defendant is to be placed on trial, is that of People v. Nogiri, 142 Cal. 596 [76 P. 490]. Therein the following pertinent language appears: ". . . The result of these decisions (former adjudications by the Supreme Court of this state) is to vest in a ministerial and executive officer, the district attorney, supervisorial, appellate and judicial powers controlling the judgment of a judicial magistrate who alone, under the Constitution, is empowered to hold the examination, and who alone is empowered to declare by his commitment the offense for which the accused person shall be put upon trial. This, we think, the law neithercontemplates nor permits. The Constitution of this state (art. I, sec. 8) provides that `offenses heretofore required to beprosecuted by indictment shall be prosecuted by information after examination and commitment by a magistrate,' . . ." The opinion then proceeds to show that even aside from the constitutionality of such a provision of such a statute, the statute there in question, then in force, and which before its recent amendment was the same statute here under consideration, was not broad enough in its terms to confer power on the district attorney to substantially alter a charge against a defendant as shown by the commitment of the magistrate. The language used by the court that ". . . There is thus neither in the Constitution nor in the laws enacted in furtherance of it,the slightest vestige of judicial, discretionary, or appellatepower given to the district attorney in controlling the action ofthe committing magistrate," — certainly cannot be taken to mean that notwithstanding the constitutional inhibition, the legislature might enact a legal statute that would permit the performance of an act in violation of the constitutional provision. It is most apparent that, if, as clearly appears by the decision, a judicial magistrate "alone, under theConstitution, is empowered to hold the examination, and whoalone is empowered to declare by his commitment the offense for which the accused person shall be put upon trial" — any number of legislative enactments to the contrary could not legalize any act performed in pursuance of any such legislation.

As supplementing the authority of People v. Nogiri,142 Cal. 596 [76 P. 490], see Ex parte Fowler, 5 Cal.App. 549 [90 P. 958]; People v. Hudson, 35 Cal.App. 234 [169 P. 719]; People v. Bomar, 73 Cal.App. 372 [238 P. 758].

In the case of People v. Foster, 198 Cal. 112 [243 P. 667], upon which principal reliance is placed for the conclusion reached in the majority opinion herein, the constitutionality of the statute was only incidentally mentioned and even then from a viewpoint entirely different from that here involved or under consideration. Although the effect of the decision is that by permitting the district attorney to amend the information so as to charge the defendant with robbing a person other than the one whom he was originally accused of robbing "violates no constitutional inhibition," — from a reading of the entire opinion in the case, it is most apparent that the only constitutional provision which was being considered by the Supreme Court was that which relates to and which affects the "due process" rights of the defendant (sec. 13, art. I), and had no relation whatsoever to section 8 of article I, which, as pointed out by Mr. Justice Henshaw in the Nogiri case (142 Cal. 596 [76 P. 490]), empowers the committing magistrate "alone" . . . "to hold the examination, and who alone is empowered to declare by his commitment, the offense for which the accused person shall be put upon trial." It is manifest that in the instant case the "due process" provision of the Constitution (sec. 13, art. I) might not only be violated, but at the same time the rights accorded to the defendant in the case by virtue of the terms of section 8, article I of the Constitution might be seriously infringed. Moreover, in the Foster case, neither in the brief presented by the appellant nor by the respondent was the issue of the constitutionality of the statutory provisions discussed or even suggested; and such consideration of the constitutionality of the statute as was given it by the Supreme Court arose from its own initiative. The force of the Foster case as an authority upon the constitutionality of the statute here in question, as applied to section 8 of article I of the Constitution, is much weakened. In none of the other cases, which are dependent upon the Foster case and to which reference is had in the majority opinion herein, is the instant constitutional question given original consideration.