Metcalf v. Municipal Court

California Court of Appeal Nov 5, 1981 No. Civ. 61950Published

Before: Roth

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Holding. The court held that the defendant could not compel the prosecution to amend a misdemeanor complaint to a felony charge under Penal Code section 17, subdivision (b)(4) because the specific offense charged was solely a misdemeanor. The court further affirmed that the discretionary power to determine the nature of criminal charges rests exclusively with the prosecutor.

Issues

Whether a defendant can force the amendment of a misdemeanor complaint to a felony charge under Penal Code section 17, subdivision (b)(4) when the charged offense is solely a misdemeanor.
Whether the incorporation of a prior child support order in a separate count of a complaint transforms a misdemeanor charge under Penal Code section 270 into a felony.

Disposition. affirmed

Quotations verified verbatim against the opinion

“of the two classes of crimes described by the language of section 270 set out above, only that which is solely a misdemeanor was charged in the complaint, such that section 17, subdivision (b)(4) is without application.”

“the sole discretionary power to bring criminal charges and to select their nature rests with the prosecutor.”

Opinion

ROTH, P. J.

On May 6, 1980, a misdemeanor criminal complaint was filed against appellant, count I of which alleged he had “.. . committed

[305]

the crime of violation of section 270 of the Penal Code in that between the dates of August 25, 1979 and December 24, 1979, in Ventura County, California, being the father of Tiffany Metcalf, born December 20, 1966; he did willfully and without lawful excuse omit to furnish said minor child[ren] [szc] with necessary food, clothing, shelter, medical attendance or other remedial care.”

Count II of the complaint further alleged appellant had "... committed the crime of violation of section 166.4 of the Penal Code in that between the dates of August 25, 1979 and December 24, 1979 in Ventura County, California, he was willfully disobedient to an order lawfully issued by the Superior Court of Ventura County, State of California, a copy of which is attached hereto as exhibit A and incorporated by reference herein, in that he did not pay the child support ordered therein.”

The document referred to in the complaint as exhibit A consisted of a “Default Judgment By Court” dated October 2, 1973, whereunder appellant was ordered to pay $190 per month in child support on behalf of said Tiffany Metcalf.

At his arraignment on the charges, appellant objected “to the charged offense[s] ... being made a misdemeanor” and demanded that the complaint be amended to charge a felony, pursuant to the provisions of Penal Code section 17, subdivision (b)(4). The objection was overruled and the demand denied by" the municipal court.

Thereafter, appellant filed his petition in the superior court for prohibition or mandamus effecting reversal of these determinations. That petition likewise was denied by order dated November 25, 1980. This appeal followed.

What was claimed in the petition and is reiterated here is that appellant was entitled to the relief sought because the provisions of Penal Code section 270 taken in conjunction with those of Penal Code section 17, subdivision (b)(4) required the result.

Th¿ former section specifies in pertinent part that: “If a parent of a minor child willfully omits, without lawful excuse, to furnish necessary clothing, food, shelter or medical attendance, or other remedial care for his or her child, he or she is guilty of a misdemeanor punishable by a

Metcalf v. Municipal Court

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ROTH, P. J.

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