P. v. Lane

Filed 5/9/07 P. v. Lane CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Tulare County. Walter L. Gorelick, Judge.

William Davies, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Charles A. French, Deputy Attorney General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

Appellant, Anthony Dale Lane, was charged by a criminal complaint with feloniously inflicting corporal injury to a spouse or cohabitant (Pen. Code,  273.5).^[1]

On April 7, 2006, a felony complaint was filed alleging that appellant violated section 273.5, subdivision (a). On August 2, 2006, the time set for a preliminary hearing was vacated and the complaint was amended to allege a misdemeanor violation of section 273.5, subdivision (a). On August 30, 2006, appellant entered into a nolo contendere plea to a misdemeanor violation of section 415. This action was not certified to superior court pursuant to section 859a. No information or indictment was filed in this matter. On September 20, 2006, appellant filed a timely notice of appeal. The trial court denied appellants request for a certificate of probable cause.

Appellants appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, raises no issues, and requests this court to independently review the record. (Peoplev. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel, indicating that appellant was advised he could file his own brief with this court. On November 21, 2006, we invited appellant to submit a letter stating any grounds he desires this court to consider on appeal. To date, he has not replied.

This case does not fit the definition of a felony case under California Rules of Court, rule 8.304(a)(2).^[2] We notified the parties pursuant to Government Code section 68081 that it appears jurisdiction of this appeal rests not with this court, but with the appellate division of the Tulare County Superior Court. The parties have not responded to our request for additional briefing.

In People v. Nickerson (2005) 128 Cal.App.4th 33, 36 (Nickerson), the original complaint alleged a felony and two misdemeanors. After a preliminary hearing, the trial court, acting as magistrate, held the defendant to answer only on the misdemeanor allegations. The defendant was convicted of one misdemeanor and he appealed to the Court of Appeal, Third Appellate District.

Nickerson relied on California Supreme Court authority in analyzing where appellate court jurisdiction rests when a case is originally filed as a felony but is later resolved as a misdemeanor. (Nickerson, supra, 128 Cal.App.4th at p. 37.) Serna v. Superior Court (1985) 40 Cal.3d 239, 257 (Serna) explained that: A felony complaint, unlike a misdemeanor complaint, does not confer trial jurisdiction. It invokes only the authority of a magistrate, not that of a trial court. ( 806.) . . . The felony complaint functions to bring the defendant before the magistrate for an examination into whether probable cause exists to formally charge him with a felony. Only if probable cause exists may an information invoking the trial jurisdiction of the superior court be filed . . . . The misdemeanor complaint, by contrast, is not a preliminary accusation. It is a formal charge, an accusatory pleading giving the court jurisdiction to proceed to trial. (Italics added.)

Nickerson noted that Serna was decided prior to the 1998 unification of the municipal and superior courts. (Nickerson, supra, 128 Cal.App.4th at p. 37.) Trial court unification did not alter the court to which cases were appealed even though the municipal court was eliminated. (Id. at p. 38.) Nickerson concluded, based on the Supreme Courts analysis in Serna, that a defendant is not charged with a felony within the meaning of section 691^[3]until an information or indictment is filed or a complaint is certified to superior court pursuant to section 859a. In reaching this conclusion, Nickerson relied on section 949.^[4]Nickerson concluded that when a matter is before a magistrate for a preliminary hearing and the magistrate reduces all of the felony charges to misdemeanors, the defendant is never charged with a felony. The resulting case is a misdemeanor case and appellate jurisdiction belongs in the appellate division of superior court. (Nickerson, supra, at p. 38.)

Here, there was no preliminary hearing. The original felony allegation was reduced to misdemeanor spousal/cohabitant abuse prior to the change of plea hearing. When appellant entered his plea of nolo contendere, it was to an amended misdemeanor allegation of section 415. The prosecutor never filed a felony indictment or information and the magistrate never certified this case to superior court pursuant to section 859a. Jurisdiction of this appeal, therefore, rests in the appellate division of the Tulare County Superior Court.

Although we do not have jurisdiction over this appeal, we need not dismiss it. We have authority pursuant to Government Code section 68915^[5]to transfer this case to the appellate division of the superior court. (Nickerson, supra, 128 Cal.App.4th at pp. 39, 41.) Although we have discretion under section 1471 to transfer this case to our own court for decision, we see no important question of law or issue that requires uniformity of decision making transfer necessary pursuant to section 1471. (Nickerson, supra, at p. 40.)

DISPOSITION

This appeal is transferred to the appellate division of the Tulare County Superior Court. (Gov. Code,  68915.)

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^* Before Wiseman, Acting P.J., Dawson, J. and Kane, J.

^[1]Unless otherwise noted, all statutory references are to the Penal Code.

^[2]California Rules of Court, rule 8.304(a)(2) was formerly designated as rule 30 and provides in relevant part:

felony case means any criminal action in which a felony is charged, regardless of the outcome. A felony is charged when an information or indictment accusing the defendant of a felony is filed or a complaint accusing the defendant of a felony is certified to the superior court under Penal Code section 859a.

^[3]Section 691, subdivisions (f) and (g) provide, respectively, the following definitions to felony and misdemeanor cases:

(f) Felony case means a criminal action in which a felony is charged and includes a criminal action in which a misdemeanor or infraction is charged in conjunction with a felony.

(g) Misdemeanor or infraction case means a criminal action in which a misdemeanor or infraction is charged and does not include a criminal action in which a felony is charged in conjunction with a misdemeanor or infraction.

^[4]Section 949 provides in relevant part that:

The first pleading on the part of the people in the superior court in a felony case is the indictment, information, or the complaint in any case certified to the superior court under Section 859a. The first pleading on the part of the people in a misdemeanor or infraction case is the complaint except as otherwise provided by law.

^[5]Government Code section 68915 provides:

No appeal taken to the Supreme Court or to a court of appeal shall be dismissed for the reason only that the same was not taken to the proper court, but the cause shall be transferred to the proper court upon such terms as to costs or otherwise as may be just, and shall be proceeded with therein, as if regularly appealed thereto.