Cronk v. Municipal Court

Opinion

PUGLIA, P. J.

This is an appeal from a judgment of the superior court denying a petition for writ of mandate to compel a magistrate to accept a plea of guilty to a felony complaint. We shall affirm.

A felony complaint was filed in respondent municipal court on March 9, 1981, charging petitioner Donald Cronk (hereafter defendant) with the murder of one James Milton Allen (Pen. Code, § 187). The complaint did not specify the degree of the murder. An arrest warrant was issued at the same time but not served on defendant until July 17, 1981, following defendant’s extradition to California from the State of Idaho. Defendant appeared before a magistrate of respondent court on July 17, 1981. Counsel was appointed and the case was continued for arraignment and plea to July 24,1981. On July 20, without notice

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to the district attorney, defendant’s counsel made an ex parte request that the matter be advanced to July 21, 1981. Counsel stated to the court it was “rather important” that this be done but gave no reasons why. The matter was so advanced.

Defendant appeared with counsel July 21 and offered to plead guilty as charged in the complaint. The prosecutor moved to dismiss, representing that since the complaint was filed, the People had developed additional evidence warranting the filing of special circumstances (Pen. Code, § 190.2).

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The prosecutor stated that he was not aware until earlier that very day that defendant had been returned from out of state and was in local custody. To the magistrate’s inquiry why he did not file an amended complaint rather than move to dismiss, the prosecutor stated: “Well, your Honor, as I understand it Mr. Hursh [defense counsel] wants to plea [sic] guilty this morning. And unless the Court were to allow us, we would prefer to file an amended complaint, but if the Court were to entertain this plea this morning, there would be no other recourse but the district attorney to dismiss. We would prefer to have the Court put it over just one day, so we can file the amended complaint alleging the special circumstances.” The magistrate continued the matter to July 22 for entry of plea and filing of an amended complaint. Later on July 21 the prosecutor filed an amended complaint including a charge of first degree murder with special circumstances. To date no plea has been entered.