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Hartman v. Superior Court of Kern County8/18/1982
COURT OF APPEAL OF CALIFORNIA, FIFTH APPELLATE DISTRICT
Civ. No. 7052
1982.CA.40387 ; 135 Cal. App. 3d 205; 185 Cal. Rptr. 182
August 18, 1982
DONALD LEE HARTMAN, PETITIONER,
v.
THE SUPERIOR COURT OF KERN COUNTY, RESPONDENT; THE PEOPLE, REAL PARTY IN INTEREST
Willard L. Weddell, Public Defender, and Nadine Burns, Deputy Public Defender, for Petitioner.
No appearance for Respondent.
George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, Arnold O. Overoye, Assistant Attorney General, James T. McNally and Susan Rankin Bunting, Deputy Attorneys General, for Real Party in Interest.
Before Zenovich, Acting P. J., Hanson (p. D.), J., and Martin, J.
The Court
Petitioner seeks a writ of mandate directing respondent court to grant his motion to set aside a criminal information pending against him.
Facts
Petitioner stands accused by information of felonious burglary in violation of Penal Code section 459.
The preliminary hearing evidence shows that between 8:30 and 9 a.m. on a Thursday petitioner broke into an unoccupied mobilehome, which was used mainly on weekends, and took something, probably a small amount of food.
After the evidence had been adduced, petitioner moved the magistrate to reduce the felony burglary charge to a misdemeanor pursuant to Penal Code section 17. His attorney argued that the facts of the crime and petitioner's prior criminal record justified such a reduction.
After the prosecutor argued against the motion, the following dialogue occurred:
"The Court: Mr. Staley [Defense Counsel], if the court made it a misdemeanor under Section 17, is the defendant going to plead guilty?
"Mr. Staley: Not at this time, your Honor. I would point out October 1st was a Thursday. It was in approximately in the middle of the week, Thursday morning. Court's already heard the testimony concerning the residential use.
"The Court: All right. Any other defense or motions?
"Mr. Staley: No, your Honor.
"The Court: All right. I will deny the motion to make it a Section 17."
Petitioner was held to answer for felony burglary.
Petitioner moved respondent court to set aside the information upon the ground, inter alia, that he was illegally committed because the magistrate inquired whether he would plead guilty to a misdemeanor. The motion was denied.
Discussion
Review by writ of mandate is proper. (See People v. Pompa-Ortiz (1980) 27 Cal. 3d 519, 529 [165 Cal. Rptr. 851, 612 P.2d 941].)
In Jackson v. Superior Court (1980) 110 Cal. App. 3d 174 [167 Cal. Rptr. 749] the magistrate expressly stated that he would grant the defendant's motion to reduce a felony charge to a misdemeanor if the
defendant would plead guilty to the reduced charge, but otherwise would deny the motion. The reviewing court held that a magistrate may not condition the exercise of his judicial discretion to reduce the offense to a misdemeanor upon the entry of a plea of guilty by the defendant. In doing so, the court relied upon In re Lewallen (1979)
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