People v. Thiecke

In People v. Thiecke (1985) 167 Cal. App. 3d 1015, the defendant was charged by information with two felony counts of sale and possession of a controlled substance and two misdemeanor counts of carrying a concealed and loaded weapon. ( Id. at pp. 1016-1017.) The trial court granted the defendant's section 995 motion as to the misdemeanor charges on the ground that no evidence had been introduced at the preliminary hearing to support them. ( Id. at p. 1017.) The People appealed, contending "a defendant is not entitled to a preliminary examination on misdemeanor charges as a condition to their prosecution in the superior court jointly with felonies charged in an information." (Ibid.) The Third District Court of Appeal affirmed, reasoning as follows: "As a general rule, the superior court has no jurisdiction over misdemeanor offenses. These lesser crimes are prosecuted in inferior courts by verified written complaint. (Pen. Code, 740.) An exception applies where misdemeanor and felony offenses are 'connected together in their commission.' (Pen. Code, 954.) In such circumstances Penal Code section 954 permits joinder and the superior court then has jurisdiction to try both classes of offenses in a single prosecution. No contention is made here that the misdemeanor and felony charges against defendant could not properly be joined in an accusatory pleading. "Penal Code section 737 provides that all 'public offenses' triable in superior court must be prosecuted by indictment or information. Before an information can be filed, there must be a preliminary examination of the evidence against the defendant and an order holding him to answer for trial. (Pen. Code, 738, 739, 872.) "Public offenses include both misdemeanors and felonies. (Pen. Code, 15, 16.) Penal Code section 860 contemplates a preliminary examination where the public offense is 'Not a felony, but within the jurisdiction of the superior court ....' (Subd. 1.) A misdemeanor connected in its commission and jointly charged with a felony is within the jurisdiction of the superior court . "Accordingly where, as here, a preliminary hearing has not been waived, misdemeanor charges in an information filed in superior court are subject to dismissal if the evidence taken before the magistrate does not establish probable cause to believe defendant guilty thereof. As no evidence was presented at the preliminary hearing to support the misdemeanor charged in counts III and IV of the information, the court properly dismissed those counts." ( People v. Thiecke, supra, 167 Cal. App. 3d at pp. 1017-1018.)