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Name: People v. McGowan
Case #: B263026
Court: CA Court of Appeal
District 2 DCA
Division: 5
Opinion Date: 11/19/2015

The arraigning magistrate in a misdemeanor case may dismiss all or part of a complaint pursuant to Penal Code section 991. Appellant was arrested for camping in a public place, loitering, and illegal possession of a milk crate. The defense filed a motion to dismiss the charges pursuant to section 991. The court dismissed two of the three charges and the prosecution appealed. The appellate division of the superior court reversed, holding that section 991 does not grant the court authority to dismiss less than the entire complaint. The Court of Appeal ordered jurisdiction of the matter transferred to it. Held: Reversed. Section 991 allows an in custody misdemeanor defendant to demand that the magistrate determine whether there is probable cause to hold the defendant on the charge. If so, the matter is set for trial. If not, the complaint is dismissed. Although the singular term “complaint” is not defined, throughout the Penal Code “the singular includes the plural, and the plural the singular.” (Pen. Code, § 7.) Similar statutes have been interpreted to allow the court to dismiss part of an action although the statute appears to refer to the whole. Penal Code section 1385, subdivision (a) allows a court to dismiss “an action” in furtherance of justice. The Supreme Court determined that this includes the power to dismiss or strike out a part. Penal Code section 995, which governs probable cause determinations in felony cases, provides that the “indictment or information shall be set aside” where a defendant is committed without probable cause. This section has also been interpreted as permitting the setting aside of a portion of the indictment or information. The same reasoning applies to section 991.

The legislative history of section 991 reflects the intent to grant a trial court authority to dismiss all or a portion of the complaint. In Gerstein v. Pugh (1975) 420 U.S. 103, the Court held the Fourth Amendment requires a “timely judicial determination of probable cause as a prerequisite to detention.” The California Supreme Court in In re Walters (1975) 15 Cal.3d 738, held that a judicial determination of probable cause to hold an arrestee for trial on a misdemeanor must be made if the arrestee so requests, unless he is released on his own recognizance pending trial. The legislative history for section 991 shows that that statute was intended not only to codify Walters, but was also intended to provide a means to eliminate groundless misdemeanor complaints before a case goes to trial. The Legislature intended section 991 to serve a function similar to that of felony preliminary hearings, and section 995 permits the court to set aside individual charges within a felony indictment or information.

Interpreting section 991 to permit trial courts to dismiss individual charges from a complaint effectuates the public policy objectives of section 991. Like section 995, section 991 operates as a judicial check on the exercise of prosecutorial charging discretion. It ensures that bail is appropriately set. Further, section 991 helps preserve fairness in the plea bargaining process by ensuring that persons being held in custody pending a misdemeanor trial do not plea under a cloud of unfounded charges.