Jackson v. Superior Court

[176]

Opinion

SMITH, J.

Petitioner, charged by information with violation of section 487, subdivision 2, of the Penal Code (theft from the person),

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seeks relief by extraordinary writ to compel respondent Superior Court of the City and County of San Francisco to grant his motion to set aside the information. Petitioner contends that his commitment is illegal because the magistrate refused to exercise his discretion to reduce the offense to a misdemeanor unless petitioner entered a plea of guilty.

Petitioner was charged initially by complaint with a violation of section 487 which provides: “Grand theft is theft committed in any of the following cases... 2. When the property is taken from the person of another.” At the preliminary hearing it was shown that petitioner took a red cigarette case containing two $1 bills from the person of a police decoy who was sitting in a doorway posing as an old and injured woman. Grand theft is punishable by imprisonment in the county jail for not more than one year or in the state prison (§ 489); petitioner sought to have the magistrate exercise his discretion under section 17, subdivision (b) (5) to declare the offense a misdemeanor.

Section 17, subdivision (b) provides: “When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances:.. .(5) When, at or before the preliminary examination or prior to filing an order pursuant to Section 872, the magistrate determines that the offense is a misdemeanor, in which event the case shall proceed as if the defendant had been arraigned on a misdemeanor complaint.”

In determining whether a defendant should be held to answer on a felony or a misdemeanor, “a committing magistrate exercises a judicial power which must be based upon an examination of the circumstances of the particular case before him.”

(Esteybar

v.

Municipal Court