Necochea v. Superior Court

[1014]

Opinion

ROTH, P. J.

On September 13, 1971 a complaint was filed alleging the commission of three misdemeanors (Pen. Code, §§ 470 and 475a). After arraignment and continuance of the plea, and thus before the plea to the charges, a new complaint was filed alleging the three offenses, as felonies, the misdemeanor complaint was dismissed in the interests of justice (Pen. Code, § 1385), and thereafter a preliminary hearing was held on the felony complaint. Petitioner was held toi answer. An information was filed setting forth the offenses as felonies, a plea of not guilty to the charges was entered, and petitioner’s ensuing motion to dismiss the information (Pen. Code, § 995) was denied.

The issue in this proceeding which seeks

to

prohibit

1

the respondent court from holding a trial on the felony charges, is whether the district attorney’s election to file a complaint specifying the offenses as misdemeanors (Pen. Code, § 17, subd. (b)(4)) is a conclusive election irrespective of the facts which caused a dismissal of the misdemeanor complaint. If it is “conclusive,” as petitioner contends it is, the contended-for effect would be to prevent the filing of a new complaint since the district attorney’s election to file misdemeanor charges would, under petitioner’s view, deprive him of the power to raise the misdemeanor characterization of the charges , to a felony classification. Petitioner relies, in this regard on Penal Code section 17, subdivision (b)(4), which provides in essence that in the case of an offense alternatively punishable as a felony or misdemeanor the filing of a misdemeanor complaint classifies the crimes as a misdemeanor “for all purposes.”

2

The case most closely in point,

People

v.

Hannon,

5 Cal.3d 330 [96 Cal.Rptr. 35, 486 P.2d 1235], which has received scant attention from the parties herein, held that a commitment to the Youth Authority, which