People v. Silva

Opinion

HUFFMAN, J.

This case presents a unique problem created by the efforts of the trial courts to coordinate the work of the municipal and superior courts in criminal cases. Here, the same superior court judge sat as a magistrate at the preliminary examination and later as a superior court judge after the bindover and filing of an information. Apparently, confusing the statutory authority of the magistrate under Penal Code

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section 17, subdivision (b)(5), the court purported to grant a motion to reduce a so-called “wobbler” offense to a misdemeanor before the adjudication of guilt. Regardless of the role in which the trial court perceived itself to act, it was without jurisdiction to grant the motion. We therefore reverse.

Statement of Facts

This appeal, brought by the People, arises from a case in which Thomas Eugene Silva, Jr., was charged with a single count of burglary of a vehicle within the meaning of section 459. It was also alleged that he had suffered two prior serious or violent felony convictions within the meaning of section 667, subdivision (b) et seq. On June 8, 1994, the case was assigned to the Honorable Jesus Rodriguez, a superior court judge sitting by assignment of the Chairperson of the Judicial Council as a magistrate of the Municipal Court for the South Bay Judicial District.

Following the preliminary examination, Silva was “bound over,” i.e., he was ordered to appear in the superior court. Prior to the bindover, counsel for Silva advised the court he wanted to make a motion to reduce the offense pursuant to section 17, subdivision (b)(5), but had not yet had the time to prepare a written motion. The court indicated it would reserve the ruling on the motion until a later date. Defense counsel advised the court his office had been making similar motions and requesting that they be heard before arraignment in the superior court. The court ultimately said, “Okay. So, in

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other words, the motion will be heard before the arraignment on the information. So the arraignment on the information is July the 11th and that’s your—your hearing motion date regarding what you’re going to file with regards to the [section] 17(b) or any other motions that you have. . . .”