People v. Municipal Court (Mercer)

[751]

Opinion

MILLER, J.

In criminal complaints filed in the Municipal Court for the City and County of San Francisco on or about June 14, 1977, defendants Michael D. Mercer and Michael L. Jones (appellants) were charged with the commission of two felonies, i.e., burglary in violation of Penal Code,

1

section 459; and grand theft in violation of section 487. The charges grew out of the burglarizing of Val’s Gun Shop at 947 Columbus Avenue in San Francisco, during which six firearms were taken.

Appellants were arraigned on June 15 and 16, 1977, and entered pleas of not guilty to the felonies charged. The matter was set for preliminary hearing in the municipal court at 9:45 a.m. June 28, 1977. Due to the fact that Assistant District Attorney Beckwith, who was assigned to prosecute the case, failed to show up at the preliminary hearing, the municipal judge refused to proceed to examine the witnesses present and/or to take any evidence in the matter. Instead, based upon the absence of the prosecuting attorney, the O.R. reports, the police report and the circumstance that appellants had no prior criminal record, the municipal judge reduced all felony charges to misdemeanors. Thereafter, the court accepted appellants’ guilty pleas to misdemeanor violations (Mercer’s plea to § 459, Jones’ jplea to § 487, offenses) and dismissed the remaining charges against them pursuant to section 1385. Deputy District Attorney Erlach, who represented the People in the proceeding, objected to both the reduction of the felony charges to misdemeanors, and to the acceptance of appellants’ guilty pleas to the reduced charges.

On August 22, 1977, 55 days after appellants entered their guilty pleas and were sentenced, and 25 days after the time for appeal had lapsed (Cal. Rules of Court, rule 182), the People filed a petition for writ of mandamus in the superior court, requesting that the municipal judge be compelled to vacate the orders made on June 28, 1977, and reinstate the felony complaints. In compliance with the People’s prayer, the superior court issued a peremptory writ of mandamus directing the municipal court to set aside the pleas of guilty, vacate the order of dismissal, and reinstate all felony charges stated in the complaints. The appeals at hand are directed at the order of the superior court.