People v. Henson

IN THE SUPREME COURT OF

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

CODY WADE HENSON,

Defendant and Appellant.

S252702

Fifth Appellate District

F075101

Fresno County Superior Court

F16901499, F16903119

August 1, 2022

Justice Jenkins authored the opinion of the Court, in which

Chief Justice Cantil-Sakauye, Justice Corrigan, and Justice

Guerrero concurred.

Justice Kruger filed a dissenting opinion, in which Justice Liu

and Justice Groban concurred.

PEOPLE v. HENSON

S252702

Opinion of the Court by Jenkins, J.

Penal Code1 section 954 provides in relevant part: “[1] An

accusatory pleading may charge two or more different offenses

connected together in their commission, or different statements

of the same offense[,] or two or more different offenses of the

same class of crimes or offenses, under separate counts, and [2]

if two or more accusatory pleadings are filed in such cases in the

same court, the court may order them to be consolidated.” As is

evident from our insertion of numerals into the text, the quoted

portion of section 954 includes two main clauses joined by the

conjunction “and.” (See People v. Merriman (2014) 60 Cal.4th 1,

36 [recognizing these distinct clauses in § 954].) The first clause

addresses joinder of related offenses in a single pleading, and for

convenience, we will refer to it as the “joinder clause.” The

second clause addresses court consolidation of separate

pleadings, which we will refer to as the “consolidation clause.”

In this case, the question before us is whether and under

what circumstances a trial court can consider more than one

preliminary hearing record in ruling on a motion under section

995 to set aside the information for lack of probable cause to

support the commitment order. (See § 995, subd. (a)(2).) But in

order to resolve that question, the parties and the Court of

Appeal offer three different interpretations of section 954. The

1

All further undesignated statutory references are to the

Penal Code.

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People argue that section 954’s joinder clause authorizes a

district attorney to file a single information combining related

offenses that were the subject of separate preliminary

examinations. By contrast, the Court of Appeal majority

concluded that section 954’s consolidation clause provides the

district attorney with that authority. Third, defendant argues

that a single information combining related offenses that were

the subject of separate preliminary examinations is

unauthorized absent a court-issued consolidation order — and

no such order was obtained in this case.

We conclude that section 954’s joinder clause permits a

district attorney to file a single information in the circumstances

presented here, provided, as is true here, that the applicable

time constraints are satisfied. We further conclude that when,

as here, related offenses are properly joined by the district

attorney, a trial court is permitted to consider more than one

preliminary hearing record in ruling on a section 995 motion.

Accordingly, we affirm the judgment of the Court of Appeal,

which reversed the trial court’s order of dismissal, although we

do not employ the Court of Appeal’s reasoning.

I. FACTS AND PROCEDURAL BACKGROUND

The facts are not the subject of significant dispute, and we

take them largely from the Court of Appeal opinion.

A. The Complaints, the Commitment Orders, and

the Information

On March 7, 2016, a felony complaint was filed at the

Fresno County Superior Court and assigned case number

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Opinion of the Court by Jenkins, J.

F16901499 (magistrate case 1499).2 The complaint charged

defendant with: (1) unlawfully driving or taking a vehicle after

having suffered three prior vehicle theft convictions (Veh. Code,

§ 10851, subd. (a); § 666.5); (2) receiving stolen property (a

motor vehicle) after having suffered three prior vehicle theft

convictions (§§ 496d, subd. (a), 666.5); (3) resisting, obstructing,

or delaying a peace officer or an emergency medical technician

(§ 148, subd. (a)(1)); and (4) possession of burglary tools (§ 466).

The offenses were all alleged to have occurred on March 4, 2016,

and defendant was further alleged to have served two prior

prison terms (§ 667.5, subd. (b)). Defendant was arraigned on

the complaint on March 8, 2016, and he was released on bail.

On May 19, 2016, a different felony complaint was filed at

the Fresno County Superior Court, and it was assigned case

number F16903119 (magistrate case 3119). The complaint

charged defendant with: (1) two counts of unlawfully driving or

taking a vehicle after having suffered three prior vehicle theft

convictions (Veh. Code, § 10851, subd. (a); Pen. Code, § 666.5),

(2) two counts of receiving stolen property (a motor vehicle) after

having suffered three prior vehicle theft convictions (§§ 496d,

subd. (a), 666.5); and (3) resisting, obstructing, or delaying a

peace officer or an emergency medical technician (§ 148, subd.

(a)(1)). The offenses were all alleged to have occurred on May

2

Although the complaint was filed at the superior court, it

was technically filed “with the magistrate,” not with the

superior court itself. (§ 806.) Subject to limited exceptions, the

first pleading that invokes the superior court’s jurisdiction in a

felony case is the information or the indictment. (§§ 682, 737,

739, 860, 944.) The distinction between magistrate proceedings

and trial court proceedings is significant here. Therefore, for the

sake of clarity, we use the term “magistrate case” when

discussing proceedings that occurred before a magistrate.

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17, 2016, and defendant was further alleged to have served two

prior prison terms (§ 667.5, subd. (b)) and to have committed the

May 17 offenses while released on bail in magistrate case 1499

(§ 12022.1). Defendant was arraigned on the latter complaint

on May 24, 2016.

The preliminary hearing in magistrate case 3119 took

place on November 16, 2016. The magistrate held defendant to

answer on all charges, and arraignment on an information was

scheduled for December 1, 2016. The preliminary hearing in

magistrate case 1499 took place six days later, on November 22,

2016. The magistrate again held defendant to answer on all

charges, and arraignment on an information was again

scheduled for December 1, 2016.

On November 29, 2016, within 15 days of both

commitment orders (see §§ 739, 860 [imposing a 15-day time

limit]), the People attempted to file a single combined

information bearing both magistrate case numbers, with

magistrate case 3119 designated as the lead case.3 Counts 1

through 4 of the combined information tracked the charges upon

which defendant was held to answer in magistrate case 1499,

and counts 5 through 7 reflected the charges upon which

defendant was held to answer in magistrate case 3119. The

information was initially rejected by the clerk’s office. On the

3

As noted on page 3, footnote 2, ante, and as will be

discussed in detail later in this opinion, magistrate proceedings

and trial court proceedings are institutionally distinct

proceedings. Therefore, there is no reason why an information

needs to be given the same case number as the magistrate

proceeding on which the information relies. Nonetheless, the

practice in Fresno County seems to be to give the two

proceedings the same case number.

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face page of the information, a file stamp bearing the date

“November 29, 2016” is crossed out by hand, and the cross-out

is initialed, suggesting that someone in the clerk’s office raised

a question about the form of the pleading. The same information

was then filed two days later, on December 1, 2016 (still within

15 days of both commitment orders), and the word

“CONSOLIDATED” was written by hand above the word

“INFORMATION.”4

B. Objection to Combined Information at the

Arraignment

Defendant was scheduled to be arraigned on the joint

information on the same day as its filing, but a complication

arose regarding defendant’s representation. The public

defender’s office had earlier declared a conflict in magistrate

case 3119, but not in magistrate case 1499, and therefore

“conflict counsel” had been appointed to represent defendant in

magistrate case 3119. But the filing of an information initiates

a new proceeding that is institutionally distinct from the

magistrate proceeding, and therefore defense counsel is

appointed anew at the arraignment on an information. (See

Lempert v. Superior Court (2003) 112 Cal.App.4th 1161, 1170–

1171; see also § 987.1.) Because the information filed in this

case combined the charges from the two magistrate proceedings,

4

The Court of Appeal dissent explains that “the clerk’s

office rejected the information and sent it to the court

department where separate arraignments in both cases were

scheduled, so that the matter of ‘consolidation’ could be

‘addressed’ by the court.” (Henson, supra, 28 Cal.App.5th at p.

515, dis. opn. of Smith, J., fn. omitted.) The dissent further

states that the judicial assistant in the arraignment department

accepted the information for filing and wrote the word

“CONSOLIDATED” on its face page. (See ibid.)

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and because the public defender’s office had declared a conflict

in magistrate case 3119, the deputy public defender requested a

continuance to make a conflict determination.

At the hearing a week later, on December 8, the deputy

public defender stated that her office would need to “conflict off”

the case if the two magistrate cases were combined into a single

trial court case. Conflict counsel then asked whether the

arraignment judge was willing to hear her oral objection to the

information. Conflict counsel took the position that the charges

from the two magistrate cases could not be combined into a

single information without a consolidation order. In response,

the arraignment judge expressed his view that the Penal Code

permitted the People to file joint pleadings without leave of the

court. After some discussion, the matter was continued for

another week.

At the hearing on December 15, conflict counsel again

argued that a consolidation order was required to combine

charges from different magistrate cases. The arraignment judge

then sought guidance from conflict counsel as to the proper

vehicle to bring the issue before the court, noting that at an

arraignment the law only permits a defendant to enter a

demurrer or a plea.5 The arraignment judge stated that he was

“not unsympathetic” to conflict counsel’s argument, but he did

not know how the issue could be raised except by entering a plea

and then filing a motion to sever (see § 954), or by demurrer on

5

Section 1002 provides: “The only pleading on the part of

the defendant is either a demurrer or a plea.” Section 1003

provides: “Both the demurrer and plea must be put in, in open

Court, either at the time of the arraignment or at such other

time as may be allowed to the defendant for that purpose.”

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the ground of improper joinder (see § 1004, para. (3)). In

response, conflict counsel asked the court simply to reject the

information as filed. But the court denied that request.

The public defender’s office then declared a conflict, and

conflict counsel was appointed to represent defendant as to all

the charges in the information. Defendant was arraigned and

pleaded not guilty. The judge set a trial date “[o]n case [sic]

ending 119 and 499 that are filed together in one information.”6

C. Defendant’s Section 995 Motion

Conflict counsel next filed a section 995 motion requesting

that the court set aside the information at least in part. Section

995 requires the arraignment court, upon motion, to set aside

an information if, among other things, “the defendant had been

6

As noted, the judicial assistant in the arraignment

department wrote the word “CONSOLIDATED” on the face

page of the information. In addition, the clerk’s minutes for

magistrate case 1499 state: “Court orders case consolidated. All

proceedings will be recorded in: F16903119.” Similarly, the

clerk’s minutes for magistrate case 3119 state: “Court orders

this case as lead case with case Fl6901499 consolidated into this

case.” Finally, docket entries were made indicating that the two

cases had been consolidated. (See, e.g., Henson, supra, 28

Cal.App.5th at p. 515, dis. opn. of Smith, J.) The record,

however, includes no formal order, either written or oral,

consolidating the two cases. In the context of discussing

judgments, we have said that the entry of minutes is “a clerical

function” and “a discrepancy between the judgment as orally

pronounced and as entered in the minutes is presumably the

result of clerical error.” (People v. Mesa (1975) 14 Cal.3d 466,

471; see People v. Leon (2020) 8 Cal.5th 831, 855; People v. Farell

(2002) 28 Cal.4th 381, 384, fn. 2.) Here, where the clerk’s

minutes state that the trial court consolidated the cases, but no

consolidation order appears in the record, we must likewise

conclude that the clerk’s minutes are in error.

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committed without reasonable or probable cause.” (§ 995, subd.

(a)(2)(B); see People v. Superior Court (Jurado) (1992) 4

Cal.App.4th 1217, 1226.) Insisting that only the record of one of

the preliminary examinations could be considered in resolving

the section 995 motion, conflict counsel argued that defendant

had been committed without probable cause regarding several

counts of the combined information. Specifically, counsel

argued there was no evidence presented at the preliminary

examination in magistrate case 3119 to support counts 1

through 4 of the combined information, and, in the alternative,

there was no evidence presented at the preliminary examination

in magistrate case 1499 to support counts 5 through 7 of that

information.

Defendant’s section 995 motion was heard on January 13,

2017. At the outset of the hearing, the motions judge noted that

he had before him two separate case files, one for magistrate

case 1499 and the other for magistrate case 3119. He then asked

the prosecutor whether there was any authority for the

proposition the People could join the charges from two

magistrate cases in a single information, in effect consolidating

the cases (and their files) without the court’s permission. The

judge indicated that he did not believe the law permitted a court

to treat the two preliminary hearing transcripts as if they were

one, and he suggested that a section 995 motion could be used

to raise the issue.

The prosecutor responded that the People did not seek to

consolidate two separate accusatory pleadings. Rather, the

People’s first and only accusatory pleading in the superior court

was the information, and in accordance with section 954’s

joinder clause, the People had properly joined “offenses of the

same class” in that information. (See People v. Landry (2016) 2

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Cal.5th 52, 76 [“ ‘Offenses of the same class are offenses which

possess common characteristics or attributes.’ ”].) The

prosecutor thus viewed the trial court proceeding as a

completely new proceeding, distinct from the earlier magistrate

proceedings. Hence, the filing of the information was, in the

prosecutor’s view, “the first inception of the proceeding,”

bringing section 954’s joinder clause into play. As to the proper

procedural vehicle by which defendant could challenge the

propriety of the information, the prosecutor argued that the

defense could have done so by way of demurrer, asserting an

improper joinder under section 954 (see § 1004, para. (3)), but

having failed to do so, the defendant could not raise a joinder

issue by way of a section 995 motion.

The motions judge rejected the prosecutor’s arguments.

Emphasizing that two separate magistrate cases had been filed

against defendant, the judge stated that the district attorney

could not combine those cases without court approval. The

judge then turned to the specific issue raised by defendant’s

section 995 motion, to wit, the question of probable cause to

support defendant’s commitment on the seven counts of the

combined information. (See § 995, subd. (a)(2)(B).) Because the

two magistrate cases had never been consolidated, the court

considered only the evidence presented at the preliminary

hearing in magistrate case 3119, which the People had

designated as the lead case, and the court ignored the evidence

presented at the preliminary hearing in magistrate case 1499.

As a result, the court found no evidence to support the charges

alleged in counts 1 through 4 of the combined information, and

it dismissed those counts.

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D. Appeal

The People appealed (see § 1238, subd. (a)(1); People v.

Alice (2007) 41 Cal.4th 668, 680), and the Court of Appeal

reversed in a split decision. (People v. Henson (2018) 28

Cal.App.5th 490 (Henson).)

1. Court of Appeal’s Majority Opinion

Although the Court of Appeal reversed the trial court’s

order of dismissal, it did not adopt the reasoning relied on by the

People in the trial court and on appeal. Instead, the Court of

Appeal relied on section 954’s consolidation clause. As noted,

the consolidation clause states that “if two or more accusatory

pleadings are filed in [related] cases in the same court, the court

may order them to be consolidated.” (§ 954, italics added.)

Focusing on the italicized phrase, the Court of Appeal

interpreted the clause as requiring a court order only in that

specified circumstance. Thus, the Court of Appeal interpreted

the clause in a manner that supported the following negative

inference: If two or more accusatory pleadings are filed in

related cases but in some different court from the court where the

matter is pending, a court order is not required for them to be

consolidated, and the district attorney can consolidate them

unilaterally. (See Henson, supra, 28 Cal.App.5th at p. 505.) The

negative inference that the Court of Appeal drew from the

consolidation clause would be more obvious if the clause

provided: “. . . if two or more accusatory pleadings are filed in

[related] cases in the same court, a court order is required for

the court may order them to be consolidated.” Phrased that way,

the clause would suggest that a court order is not otherwise

required, and that is precisely the way the Court of Appeal

construed the clause.

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In support of its interpretation, the Court of Appeal

recognized that it needed to consider how section 954 operated

before court unification.7 Prior to unification, the complaint in

a felony case was filed at the municipal court, although

technically speaking it was filed with a magistrate, not with the

court. (See Koski v. James (1975) 47 Cal.App.3d 349, 354–355.)

After the magistrate held a preliminary examination and issued

a commitment order, the district attorney then filed an

information in the superior court. In the Court of Appeal’s view,

this two-court structure informed the meaning of section 954’s

use of the phrase “in the same court.” The Court of Appeal

reasoned as follows: Before court unification, a court order was

required to consolidate two or more felony complaints because

they were filed “in the same court” (the municipal court), and

likewise a court order was required to consolidate two or more

informations because they, too, were filed “in the same court”

(the superior court), but a court order was not required to allow

the district attorney to consolidate two or more complaints into

a single information because the information and the complaints

were not filed “in the same court.”8 The Court of Appeal further

7

Court unification occurred between 1998 and 2002, and

section 954 has not been changed since 1951.

8

In reaching this conclusion, the Court of Appeal glossed

over the fact that, before court unification, the felony complaint

was not actually filed with the municipal court; rather, it was

filed with the magistrate, who was not acting as an officer of the

municipal court. (See Koski v. James, supra, 47 Cal.App.3d at

pp. 354–355.) Thus, the focus on the phrase “in the same

court” — a focus that was critical to the Court of Appeal’s

reasoning — reflected a misunderstanding of the nature of

magistrate proceedings. This point is discussed in more detail

below, but it is mentioned briefly here to avoid confusion.

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reasoned that if the same rule continued to apply after court

unification, then the district attorney in the present case did not

need a court order to consolidate the felony complaints in

magistrate cases 1499 and 3119 into a single information. (See

Henson, supra, 28 Cal.App.5th at pp. 505–510.)

Having set up the problem in those terms, the Court of

Appeal noted that court unification was intended to effect an

administrative change in the organization of the judiciary, not a

change in criminal procedure. Therefore, although there was,

after court unification, a single court in each county, “ ‘that

single court [still] has two divisions corresponding to the former

municipal and superior courts.’ ” (Henson, supra, 28

Cal.App.5th at p. 510, italics omitted, quoting Lempert v.

Superior Court, supra, 112 Cal.App.4th at p. 1169.) As such, the

phrase “in the same court” continued to have the same practical

meaning both before and after court unification. (See Henson,

at pp. 507–510.) In the words of the Court of Appeal, when

section 954 “refers to two or more accusatory pleadings being

filed ‘in the same court,’ it is referring to two or more such

pleadings being filed at the stage of proceedings historically

conducted in municipal court or at the stage historically

conducted in superior court. Thus, while court permission is

required to consolidate two complaints or two informations,

[court permission] is not required to incorporate two complaints

into a single information where that information is the People’s

first pleading at the superior court stage of proceedings.”

(Henson, at p. 510, fn. omitted.)

Applying its interpretation to the facts of this case, the

Court of Appeal majority concluded that the district attorney

acted properly when filing an information that effectively

consolidated the complaints in magistrate cases 1499 and 3119

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into a single combined information. The Court of Appeal further

concluded that the trial court erred by looking only at the record

of the preliminary examination in magistrate case 3119 to find

no probable cause to support counts 1 through 4 of that

combined information. Accordingly, the Court of Appeal

reversed the trial court’s order of dismissal. (Henson, supra, 28

Cal.App.5th at pp. 513–514.)

2. Court of Appeal’s Dissenting Opinion

The dissenting justice in the Court of Appeal asserted that

the majority had adopted a strained reading of section 954’s

consolidation clause in order to draw the negative inference that

supported its conclusion. (Henson, supra, 28 Cal.App.5th at p.

524, dis. opn. of Smith, J.) In the dissent’s view, the

consolidation clause’s purpose is merely to give courts authority

to consolidate related pleadings; its purpose is not to state the

circumstances in which a consolidation order is required, thus

implying that in other circumstances one is not required. (Id. at

pp. 524, 528–529, dis. opn. of Smith, J.) The dissent also pointed

out that the majority’s interpretation had not been advocated in

the trial court on behalf of the People. (Id. at pp. 522–523, 530,

dis. opn. of Smith, J.) Rather, the prosecutor had relied solely

on section 954’s joinder clause, arguing that the information

could join appropriately related offenses without need for a court

order. (Henson, at pp. 522–523, 530, dis. opn. of Smith, J.) In

rejecting the latter argument, the dissent employed a policy

rationale, noting that the unilateral joinder of offenses that had

been the subject of different preliminary examinations would

lead to unacceptable levels of confusion because the evidence

supporting the information would necessarily be located in

different case files. (Id. at pp. 523, 530, 532–534, dis. opn. of

Smith, J.)

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The dissent also relied on section 739, which provides:

“ ‘When a defendant has been examined and committed . . . it

shall be the duty of the district attorney . . . to file in the superior

court . . . an information against the defendant which may

charge the defendant with either the offense or offenses named

in the order of commitment or any offense or offenses shown by

the evidence taken before the magistrate to have been

committed.’ ” (Henson, supra, 28 Cal.App.5th at p. 519, dis. opn.

of Smith, J., some italics omitted.) In the dissent’s view, the

references in section 739 to “the order of commitment,” “the

evidence,” and “the magistrate” (§ 739, italics added) implied

that each information had to be supported by a single

magistrate proceeding. (See Henson, at pp. 524–527, dis. opn.

of Smith, J.)

II. DISCUSSION

In part II.A., we discuss in general terms the nature and

role of magistrate proceedings. In part II.B., we turn to section

954 and consider whether the joint information filed in this case

was appropriate under that section. Next, in part II.C., we

explain the error of the majority and dissenting opinions in the

Court of Appeal. Finally, in part II.D., we address whether the

trial court here erred when, for purposes of resolving

defendant’s section 995 motion, it looked only at the record of

magistrate case 3119 and found no probable cause to support

charges 1 through 4 of the joint information.

A. The Nature of Magistrate Proceedings and the

Due Process Protections They Afford

In modern criminal practice, we tend to think of a

magistrate as a state official who conducts a preliminary

examination of the People’s case, and that description is

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certainly accurate (see §§ 859b, 860), but the Penal Code defines

the term “magistrate” as “an officer having power to issue a

warrant for the arrest of a person charged with a public offense”

(§ 807). It is true that peace officers often have authority to

make arrests without a magistrate’s warrant (see §§ 836, 849),

and with the growth of modern law enforcement agencies, crime

victims now tend to seek recourse from city police departments

and county sheriff’s offices. But decisions from the 19th century

and the first half of the 20th century make clear that, at one

time, crime victims frequently sought recourse directly from a

magistrate. (See, e.g., People v. McDaniels (1903) 141 Cal. 113;

People v. George (1898) 121 Cal. 492.) The victim of a crime

would approach a magistrate, execute an affidavit describing

the relevant events, and the magistrate would determine, based

on the affidavit and the testimony of any other witnesses,

whether to issue an arrest warrant. (Stats. 1872, Pen. Code,

§§ 811, 813, 814.) Then, after the accused was arrested and

brought before the magistrate (id., § 858), the magistrate would

hold a preliminary examination of the case (id., §§ 860–869) and

decide whether the accused should be “ ‘held to answer’ ” (id.,

§ 872). The word “held” in this context was employed in a quite

literal sense; being “ ‘held to answer’ ” meant being committed

to the custody of the county sheriff pending the outcome of a

court trial (id., § 872; see id., §§ 872, 876, 877), and once that

commitment order issued, it was the duty of the district attorney

to file an information in the superior court within 30 days,

initiating a court proceeding to determine whether the accused

was guilty of the charged offense (id., § 809).

Today, crime victims rarely approach a magistrate

directly, but the magistrate’s formal role has not changed, and

what this history makes clear is that the proceeding before the

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magistrate is not merely the early stage of a trial court

prosecution. Rather, it is a completely independent proceeding

that is primarily concerned with the arrest and temporary

detention of the defendant. Moreover, at one time, the

magistrate proceeding could be initiated by a private party

acting without the concurrence of any elected prosecutorial

authority, much as today a private party can file a police report

without the concurrence of any elected prosecutorial authority.

This practice changed in 1972, when the Court of Appeal held

that due process requires that the local district attorney approve

the filing of a criminal complaint. (See People v. Municipal

Court (Pellegrino) (1972) 27 Cal.App.3d 193, 205–206.) But

before 1972, it was not uncommon for the complainant who

executed a criminal complaint to be the victim of the alleged

crime, a witness, or a peace officer. (See § 806 [requiring that a

felony complaint be subscribed by the complainant]; cf. § 739

[requiring that an information be subscribed by the district

attorney].)

Consistent with the distinct and limited role of the

magistrate, the office of magistrate is institutionally separate

from any court. This point tends to be obscured in modern

practice because the felony complaint that initiates the

magistrate proceeding is filed at the court, but as a technical

matter, it is filed with the office of magistrate, not with the court

itself, and the judge who holds the preliminary hearing sits as a

magistrate, not as a judge. The Court of Appeal explained this

point in some detail in Koski v. James, a case that was decided

when municipal court judges served as magistrates. The court

said: “A magistrate is purely a creature of statute, the holder of

a statutory office separate and distinct from the elective office of

judge. [Citations.] . . . [¶] ‘When a judge of a particular judicial

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district acts in the capacity of a magistrate, he does not do so as

a judge of a particular court but rather as one who derives his

powers from [statute]. [Citation.] By initiating proceedings

before magistrates, no trial jurisdiction of any court is invoked.’

[Citation.] [¶] . . . [¶] . . . [¶] Although the office of magistrate

is an office which one holds under [statute] by virtue of being a

judge, it is a different office from that of judge and is one

conferred by statute not by district election. Preliminary felony

proceedings in any judicial district do not invoke the jurisdiction

of the elected judge but of the magistrate.” (Koski v. James,

supra, 47 Cal.App.3d at pp. 354–355, fn. omitted.)

In summary, the magistrate’s primary role relates to a

defendant’s arrest and detention pending a court trial, and the

magistrate represents the office of magistrate, not a court.

Therefore, the proceeding that commences after the magistrate

has issued a commitment order is not merely the next stage in

a single ongoing trial court prosecution; rather, it is the

beginning of that prosecution. (See, e.g., People v. Tideman

(1962) 57 Cal.2d 574, 579; cf. § 804 [defining “prosecution”

specially, and more broadly, for purposes of applying various

statutes of limitations].)9

The latter point is brought into relief when we consider

the constitutional protections that govern the initiation of

criminal prosecutions. As the Massachusetts Supreme Judicial

Court explained over 160 years ago: “The right of individual

9

The fact that trial court proceedings are institutionally

distinct from magistrate proceedings explains why defense

counsel must be appointed anew on the date set for the

arraignment on the information. (See § 987.1; Lempert v.

Superior Court, supra, 112 Cal.App.4th at pp. 1170–1171.)

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citizens to be secure from an open and public accusation of

crime, and from the trouble, expense and anxiety of a public

trial, before a probable cause is established by the presentment

and indictment of a grand jury, in case of high offences, is justly

regarded as one of the securities to the innocent against hasty,

malicious and oppressive public prosecutions, and as one of the

ancient immunities and privileges of English liberty.” (Jones v.

Robbins (1857) 74 Mass. 329, 344.) In California, however,

grand jury indictment is not required; rather, felony

prosecutions can be “by indictment or information.” (§ 682,

italics added.) Because indictment by a grand jury protects such

an important liberty interest, it follows that comparable

protections apply when a felony is prosecuted by information,

and indeed that is so.

It has long been held that the Fifth Amendment’s

guarantee of indictment by grand jury does not apply to the

states. (See Hurtado v. People of State of Cal. (1884) 110 U.S.

516 (Hurtado).) In Hurtado, the high court reasoned that so

long as a state provides, in advance of instituting a felony

prosecution, some threshold procedure that comports with

“fundamental principles of liberty and justice,” the Fourteenth

Amendment’s due process guarantee is satisfied. (Id. at p. 535.)

But the threshold procedure, whatever it might be, must be

adequate “ ‘to secure the individual from the arbitrary exercise

of the powers of government.’ ” (Id. at p. 527, quoting Bank of

Columbia v. Okely (1819) 17 U.S. 235, 244.)10 The Hurtado court

10

The dissent describes the distinction between the

threshold procedure and any subsequent court trial as merely a

“technical characterization” “of when a felony proceeding

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then discussed the magistrate proceeding that, under California

law, precedes the filing of an information. Upholding

California’s practice, the Hurtado court declared: “[W]e are

unable to say that . . . proceeding by information, after

examination and commitment by a magistrate, certifying to the

probable guilt of the defendant, with the right on his part to the

aid of counsel, and to the cross-examination of the witnesses

produced for the prosecution, is not due process of law.” (Id. at

p. 538.)

What Hurtado makes clear is that (1) the filing of a felony

complaint with a magistrate, (2) the magistrate’s preliminary

examination of the case, and (3) the magistrate’s commitment

order, while being in some sense the initiation of a criminal case

(see People v. Martinez (2000) 22 Cal.4th 750, 754; In re Harris

(1989) 49 Cal.3d 131, 136–137), are components of a threshold

proceeding that precedes the formal trial court prosecution of

the defendant and that ensures that the district attorney or

other prosecutorial authority does not abuse his or her power.

begins.” (Dis. opn. of Kruger, J., post, pp. 13, 15.) The dissent

also argues that the institutional separation between

magistrate proceedings and trial court proceedings is “not

unassailable” (id. at p. 13), and it cites a long list of authorities

in an effort to support this proposition (id. at pp. 13–14 & 14–

15, fn. 4). But the purpose of the threshold proceeding in front

of the magistrate is to protect individuals from the arbitrary

exercise of governmental power. (Hurtado, supra, 110 U.S. at p.

527.) We do not think the word “technical” properly

characterizes the high court’s important due process holding in

Hurtado. And, by suggesting that there is only one continuous

court proceeding that begins with the filing of a felony complaint

and ends with a trial, the dissent casts doubt on the reasoning

of Koski v. James, supra, 47 Cal.App.3d 349, but it fails to

explain why Koski v. James is wrong.

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(See People v. Martinez, at p. 763 [“Although at first glance a

felony complaint may appear to be a ‘formal charge,’ it is not a

document upon which a defendant may be subjected to trial”];

Jones v. Superior Court (1971) 4 Cal.3d 660, 664 [recognizing

“the constitutional mandate which ‘protects a person from

prosecution in the absence of a prior determination by either a

magistrate or a grand jury that such action is justified’ ”]; People

v. Tideman, supra, 57 Cal.2d at p. 579 [“The prosecution (with

the exceptions not here material) commences when the

indictment or information is filed in the superior court . . . .”];

see also Hurtado, supra, 110 U.S. at pp. 537–538.)11 For this

reason, the felony complaint that initiates this threshold

proceeding does not need to be “subscribed” (i.e., signed) by the

district attorney (§ 806), and the proceeding does not invoke the

jurisdiction of any court (§ 813, subd. (a)).

Significantly, the threshold nature of this proceeding is

not just a matter of legal doctrine. From the accused’s point of

view, the proceeding before a magistrate does not carry with it

the same significance as a trial court prosecution, in that “the

filing of a felony complaint, unlike indictment or accusation by

information, does not threaten oppressive pretrial

incarceration. The time constraints within which the

preliminary hearing must be conducted or the complaint

11

It is true that under section 739, “an information . . . may

charge the defendant with . . . any offense or offenses shown by

the evidence taken before the magistrate to have been

committed,” and therefore after the preliminary hearing, the

district attorney can charge new offenses and even offenses

rejected by the magistrate. But the law “does not permit the

district attorney to ignore material factual findings of the

magistrate.” (Jones v. Superior Court, supra, 4 Cal.3d at p. 666;

see id. at pp. 666–668.)

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dismissed and the defendant released (§ 859b) ensure that the

defendant is not subjected to extended anxiety or public

opprobrium, and by giving the defendant immediate notice of

the charge and opportunity to defend avoid prejudice to the

defense.” (Serna v. Superior Court (1985) 40 Cal.3d 239, 257.)

B. Section 954’s Joinder Clause

In considering whether section 954’s joinder clause

permits the joint information that the district attorney filed in

the present case, it is worth noting that California has long

adhered to a policy of promoting judicial economy through the

joinder of appropriately related offenses, subject to severance as

necessary to protect the interests of the defendant. (See People

v. Ochoa (1998) 19 Cal.4th 353, 409 [“ ‘Joinder of related

charges . . . ordinarily avoids needless harassment of the

defendant and the waste of public funds which may result if the

same general facts were to be tried in two or more separate

trials . . . .’ ”]; see generally McDonald, Prejudicial Joinder

under California Penal Code Section 954: Judicial Economy at

a Premium (1989) 20 McGeorge L. Rev. 1235.)

Moreover, prior to 1951, section 954 expressly allowed

precisely what the district attorney did here. That is, it allowed

the district attorney to join related felony offenses in a single

“information” without the necessity of obtaining a court order.

The statute then provided in relevant part: “An indictment,

information, or complaint may charge two or more different

offenses connected together in their commission, or different

statements of the same offense[,] or two or more different

offenses of the same class of crimes or offenses, under separate

counts, and if two or more indictments or informations are filed

in such cases the court may order them to be consolidated.”

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(Stats. 1927, ch. 611, § 1, p. 1042, italics added.) Importantly,

nothing in the pre-1951 version of the statute suggested that the

joinder of related felony offenses in a single information was

only permitted if the offenses had already been joined in

magistrate proceedings. Indeed, such a limitation would have

made no sense since magistrate proceedings were not (and are

not) court proceedings, and section 954 originally dealt only with

pleadings filed in a court.12 Moreover, prior to 1972, magistrate

proceedings could be initiated by a private party acting without

the concurrence of the district attorney. If multiple crime

victims filed multiple felony complaints alleging related

offenses, the district attorney’s only opportunity to exercise his

or her express right to join those offenses was when filing the

information.

Notably, section 954 made clear that if the district

attorney filed multiple informations alleging related offenses,

12

Before 1927, section 954 applied exclusively to court

proceedings. In 1927, however, section 954’s joinder clause was

amended to replace “indictment or information” (Stats. 1915,

ch. 452, § 1, p. 744) with “indictment, information, or complaint”

(Stats. 1927, ch. 611, § 1, p. 1042, italics added), thus making

the joinder clause applicable to magistrate pleadings. But

nothing about that change suggests an intent to restrict the

already existing power to join related offenses in court

pleadings, or to make joinder at the information stage

dependent on a prior joinder at the complaint stage. The dissent

expresses concern about the authority of magistrates to

consolidate complaints under section 954’s consolidation clause,

which only refers to the “court.” (§ 954; see dis. opn. of Kruger,

J., post, pp. 14–15, fn. 4.) That issue is not before us, and

nothing in our opinion should be read to suggest that we have

decided the issue.

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court action was required to consolidate them.13 This

requirement was not inconsistent with the district attorney’s

unilateral authority to join related offenses in a single pleading,

because once multiple pleadings are pending before a court, the

court has an interest in controlling its own docket. But the pre-

1951 version of section 954 only authorized court consolidation

of “two or more indictments or informations,” not two or more

complaints. To understand the latter limitation, it is necessary

to consider the structure of the California criminal courts before

court unification. At that time, misdemeanors and infractions

were, with few exceptions, prosecuted by complaint filed in the

municipal court (former § 740, Stats. 1951, ch. 1674, § 6, p. 3831;

former § 1462, Stats. 1976, ch. 1288, § 21, p. 5765), whereas

felonies were prosecuted by indictment or information filed in

the superior court (former § 737, Stats. 1987, ch. 828, § 49,

p. 2593). (See People v. Frederickson (2020) 8 Cal.5th 963, 994;

In re McKinney (1968) 70 Cal.2d 8, 13.) Therefore, because the

pre-1951 version of section 954 only authorized the

13

The dissent frequently refers to the consolidation of

charges, arguing that here the district attorney was able to

consolidate charges without the requisite court permission. (See

dis. opn. of Kruger, J., post, pp. 1–7, 10–11, 17.) We disagree.

Section 954 does not discuss the consolidation of “charges”;

rather, it discusses the consolidation of “pleadings” filed in a

“court,” requiring court permission to do so. But magistrate

proceedings are not court proceedings — a point the dissent

discounts (see pp. 18–19, fn. 10, ante) — and if no pleadings have

been filed in a court, then there is no pending court proceeding

and nothing for a court to consolidate. Of course, once the first

pleading is filed in a court, a court proceeding begins, but at that

point, section 954’s joinder clause (not its consolidation clause)

comes into play, allowing the joinder of any appropriately

related offenses, and not requiring court permission to do so.

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consolidation of “two or more indictments or informations,” the

statute did not give the municipal court any express authority

to consolidate pleadings.

In 1951, section 954 was amended to assume its present

form. The sentence discussed above was amended to read: “An

indictment, information, or complaint accusatory pleading may

charge two or more different offenses connected together in their

commission . . . or two or more different offenses of the same

class of crimes or offenses, under separate counts, and if two or

more indictments or informations accusatory pleadings are filed

in such cases in the same court, the court may order them to be

consolidated.” (§ 954, Stats. 1951, ch. 1674, § 45, p. 3836.) As is

readily apparent, the generic term “accusatory pleading” was

substituted for the specific types of pleadings that the prior

version of the statute had named, but the use of that generic

term — a term that includes misdemeanor complaints — meant

that, as a result of the 1951 amendment, section 954 expressly

granted municipal courts the power to consolidate pleadings.

That new rule was consistent with the general purpose of the

1951 amendment, which was to make the same criminal

procedures applicable at all court levels. (See Legis. Counsel,

Rep. on Sen. Bill No. 543 (1951 Reg. Sess.) July 12, 1951, p. 12.)

In addition, to maintain the strict separation of

misdemeanor jurisdiction from felony jurisdiction, the 1951

amendment to section 954 also added the phrase “in the same

court.” The addition of that phrase meant that a municipal

court could consolidate accusatory pleadings filed in the

municipal court (i.e., misdemeanor complaints), and a superior

court could consolidate accusatory pleadings filed in the

superior court (i.e., indictments and informations), but neither

court could consolidate pleadings filed in their respective courts

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with those filed in the other. Thus, the phrase “in the same

court” maintained the jurisdictional boundary between the

superior courts and the inferior courts.14

These jurisdictional lines began to blur in 1992 (see People

v. Frederickson, supra, 8 Cal.5th at p. 995 [describing a 1992

amendment that slightly broadened the jurisdiction of the

municipal and superior courts]), and they disappeared

altogether by 2002. In 1994, the voters eliminated the justice

courts by approving Proposition 191, and then in 1998, the

voters approved Proposition 220, permitting unification of the

municipal and superior courts. The unification of these courts

was intended to streamline court administration, and it was

presented to the county courts only as an option. Nonetheless,

by 2002 the judges in all of California’s counties had opted to

unify their courts, with the result that each county then had

only a superior court.

With the advent of court unification, an accusatory

pleading — whether charging a felony or a misdemeanor — was

filed in the superior court. However, in many respects, court

unification did not bring about any significant change in

14

In Kellett, this court recognized an exception to this

jurisdictional boundary. We said: “Section 954 . . . authorizes

the joinder of a misdemeanor count and a felony count in a

prosecution in the superior court.” (Kellett v. Superior Court of

Sacramento County (1966) 63 Cal.2d 822, 826, fn. 3, italics

added; see In re McKinney, supra, 70 Cal.2d at p. 13 [recognizing

the superior court’s jurisdiction to adjudicate a joined

misdemeanor count].) This exception, based on the joinder

clause of section 954, did not change the rule that a court could

only consolidate pleadings filed “in the same court” (§ 954),

meaning that the superior court could not consolidate a

municipal court complaint with a superior court information.

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criminal procedure. For example, before court unification,

judges (then of the municipal courts) sat as magistrates to hold

preliminary hearings in felony cases, and after court unification,

judges (now of the superior courts) continued to sit as

magistrates for the same purpose. (See People v. Crayton (2002)

28 Cal.4th 346, 359–360.) Likewise, both before and after court

unification, the magistrate did not preside as the judge of any

court, and he or she did not exercise trial jurisdiction. Hence, it

is still the law today that if a defendant enters a guilty plea

before a magistrate, the magistrate — despite being a superior

court judge — must certify the case to the trial court for entry of

judgment. (§ 859a, subd. (a).) Similarly, if the magistrate

conducts a preliminary examination and orders that the

defendant be held to answer (§§ 860, 872), the district attorney

must file an information “in the superior court” (§§ 739, 860).

That filing is necessary because even though the magistrate is

a superior court judge, the superior court is institutionally

distinct from the office of magistrate, which conducted the

preliminary hearing. (Compare § 806 with §§ 739, 860.)

The misapprehension that arose at all stages of the

present case may be attributed, in large part, to court

unification. Before court unification, it was relatively easy to

distinguish magistrate proceedings from trial court proceedings

because they occurred, as an administrative matter, in two

different courts. But after court unification, the felony

complaint that initiates a magistrate proceeding is filed at the

same superior court that later conducts the trial (assuming the

defendant is held to answer), and the magistrate who presides

at the preliminary examination is a superior court judge.

Moreover, the trial court proceeding often bears the same case

number as the magistrate proceeding that precedes it. With

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everything taking place under the administrative oversight of

the superior court, it is easy to imagine, as the dissent does (see,

e.g., dis. opn. of Kruger, J., post, pp. 10–11, 13–14, and 14–15,

fn. 4), that the preliminary examination and the trial are

successive stages in a single ongoing proceeding that begins

with the filing of the felony complaint. Not so. Rather, as we

clarified above, the felony complaint is filed “with the

magistrate” (§ 806), not with the court, and the first pleading in

a felony case that is filed with the court — the first pleading that

must be subscribed by the district attorney and that initiates

the actual court prosecution of the defendant — is the

information. It is only with the filing of that information that

the superior court begins to exercise its jurisdiction.

Once the institutional separation between magistrate

proceedings and trial court proceedings is fully appreciated, it

becomes clear that pleadings filed in magistrate proceedings do

not limit the district attorney’s joinder power under section 954,

a statute that is primarily concerned with trial court

proceedings. Since 1951, section 954’s joinder clause has

provided: “An accusatory pleading may charge two or more

different offenses connected together in their commission . . . or

two or more different offenses of the same class of crimes or

offenses . . . .” (§ 954.) The information that initiates a felony

case is without question an accusatory pleading (see § 691), and

therefore under the express terms of section 954, the district

attorney is free to join in that information different offenses

connected in their commission or of the same class, and no court

order is required to that end. The only limitations section 954

imposes on this joinder power concern the way in which the

offenses must be related and the grant of authority to trial

courts to sever joined offenses when necessary to protect the

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interests of the defendant. When a law authorizes an act, as

section 954 clearly does, it does not need to expressly authorize

each individual way the act can be carried out. Therefore,

section 954 need not specify that the joinder power extends to

offenses that were the subject of different magistrate

proceedings. Indeed, the contrary rule, limiting joinder to

offenses that were the subject of a single magistrate proceeding,

would ignore the fact that magistrate proceedings are

institutionally distinct proceedings that, prior to 1972, could be

initiated without the concurrence of the district attorney. In

light of the California policy favoring joinder, it would make no

sense for the district attorney’s joinder power at the information

stage to depend on how many felony complaints different

victims of related crimes may have filed. Furthermore, in the

present case there is no indication of sharp practices on the part

of the district attorney. Rather, the offenses at issue here are of

the same class of offense, and their joinder appears to be fully

consistent with the underlying purposes of the joinder statute,

which is to promote judicial economy. Accordingly, we find

nothing improper in the joint information that the district

attorney filed here.15

15

This case is not the first in which a district attorney has

filed a single information joining charges from separate

complaints. (See People v. Lopez (July 23, 2010, A124818)

[nonpub. opn.]; People v. Brewton (July 11, 2002, F036610)

[nonpub. opn.]; see also People v. Cooper (July 30, 2014,

A139419) [nonpub. opn.].) The decisions in these other cases are

not published in the official reports, but without treating them

as legal precedent, we may take judicial notice of their

statements of fact. (See People v. Hill (1998) 17 Cal.4th 800,

847, fn. 9.)

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C. The Error of the Court of Appeal

As noted, the Court of Appeal majority relied on section

954’s consolidation clause, not its joinder clause, to find

authority for what the district attorney did in this case. The

Court of Appeal did not interpret section 954’s consolidation

clause as merely defining the circumstances in which a court is

permitted to consolidate multiple pleadings; it also interpreted

the clause as defining the circumstances in which a district

attorney is not permitted to do so. The Court of Appeal

concluded that the district attorney cannot consolidate

pleadings when they are filed “in the same court” as the court

where the consolidation is taking place (§ 954), but the Court of

Appeal concluded that the district attorney is otherwise free to

consolidate pleadings without court approval. (Henson, supra,

28 Cal.App.5th at p. 510.) Based on that reading of section 954,

the Court of Appeal majority further concluded that before court

unification, the district attorney did not need court approval to

consolidate two felony complaints into a single information

because the municipal court where the felony complaints were

filed was a different court from the superior court where the

information was filed. (Henson, at p. 505.) The question the

majority then sought to answer is whether the phrase “in the

same court” continued to serve essentially the same role after

court unification. The majority concluded that it did, arguing

that (1) courts favor an interpretation of statutory language that

gives effect to that language, and (2) court unification was

intended to effect a change in the administration of the courts,

not a change in criminal procedure. On that basis, the Court of

Appeal majority held that after court unification, a district

attorney does not need court approval to consolidate two felony

complaints into a single information because the magistrate

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stage of the proceeding can be treated as if it were occurring in

a different court from the trial court stage of the proceeding. (Id.

at pp. 507–510.)

But the Court of Appeal overlooked the fact that before

court unification, the felony complaint that initiated the

magistrate proceeding was not filed in the municipal court or in

any court; rather, it was “filed with the magistrate” (§ 806), and

that continues to be true after court unification (ibid.).

Therefore, the phrase “in the same court” was not added to

section 954 to distinguish between magistrate proceedings and

superior court proceedings in felony cases, as the Court of

Appeal concluded. Rather, as discussed above, it was added to

section 954 to prevent the superior court from consolidating a

misdemeanor complaint with a felony information, which would

have eroded the jurisdictional boundary between the superior

courts and the inferior courts.16

But that error aside, we also disagree with the Court of

Appeal’s conclusion that section 954’s consolidation clause, by

defining the circumstances in which a court is permitted to

consolidate pleadings, implicitly authorizes a district attorney

16

Because court unification was optional, some counties

continued to have a two-tiered court system during the years

immediately following approval of Proposition 220 in 1998, and

therefore the changes made to state law to facilitate court

unification did not include deletion of the phrase “in the same

court” from section 954. In counties that continued to have both

municipal and superior courts, the phrase “in the same court”

had the same meaning it had always had, preserving the

jurisdictional boundaries between the two court levels. By 2002,

however, all California counties had unified their courts. At

that point, section 954’s use of the phrase “in the same court”

became surplusage.

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to consolidate pleadings without court approval in all other

circumstances. (See Henson, supra, 28 Cal.App.5th at p. 510.)

In our view, the more natural reading of section 954’s

consolidation clause — which provides that “the court may order

[pleadings] to be consolidated” (§ 954) — is that it does not

confer any consolidation authority on the district attorney, and

therefore the Court of Appeal’s reliance on the consolidation

clause was misplaced.

We further conclude that the Court of Appeal’s dissenting

opinion is unpersuasive. The dissenting justice opined that the

Penal Code contemplates the following linear progression in

felony cases: (1) the filing of a complaint (along with the

assignment of a single case number and the creation of a single

case file); (2) the arraignment on the complaint; (3) the

preliminary examination; (4) the magistrate’s commitment

order; (5) the filing of the information (having the same case

number and case file as the magistrate proceeding); (6) the

arraignment on the information; (7) the filing of any motions; (8)

the trial; (9) the verdict; (10) the judgment, etc. According to the

Court of Appeal dissent, section 954’s joinder clause operates

primarily at step (1) in this progression, and although it might

also operate at step (5), it does so only when joining offenses that

were already joined at step (1). (See Henson, supra, 28

Cal.App.5th at pp. 525–527, 532, dis. opn. of Smith, J.) We reject

the dissent’s reasoning because it finds no support in the text of

section 954, and because it fails to address, as discussed above,

that magistrate proceedings are institutionally distinct from

trial court proceedings. Because the information in this case

initiated a new proceeding in the superior court — one that was

institutionally distinct from the magistrate proceeding — the

district attorney was free, under section 954’s joinder clause, to

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join in the information any appropriately related offenses

without the necessity of obtaining a court order. (See p. 23, fn.

13, ante [discussing the dis. opn. of Kruger, J.].)17

In support of its linear one complaint/one information

model of criminal procedure, the Court of Appeal dissent relied

heavily on section 739. As noted, section 739 provides: “When

a defendant has been examined and committed . . . , it shall be

the duty of the district attorney . . . to file in the superior

court . . . an information against the defendant which may

charge the defendant with either the offense or offenses named

in the order of commitment or any offense or offenses shown by

the evidence taken before the magistrate to have been

committed.” (Italics added.) The dissenting justice reasoned

that if two felony complaints are filed, and if, as a result, two

different magistrates issue two different commitment orders

based on two different evidentiary presentations occurring at

two different preliminary examinations, then the various

offenses named in the different commitment orders (or shown

by the different evidentiary presentations) cannot be joined in a

single information because, under section 739, an information

can only charge offenses named in “the” commitment order or

shown by “the” evidence taken before “the” magistrate (§ 739).

(Henson, supra, 28 Cal.App.5th at pp. 524–527, dis. opn. of

Smith, J.)18

17

Many of the arguments made by the dissent in the Court

of Appeal are adopted by the dissent in the present court, and

our critique of the one applies, mutatis mutandis, to the other.

18

To support this argument, the Court of Appeal dissent also

relied on section 1009, which refers to “the evidence taken at the

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Section 739, however, is inapposite on the issue we resolve

here. Section 739 is not a joinder statute; rather, its purpose is

to set forth the place of filing, timing, and general form of the

information, and it references the offenses that may be charged

in the information only to specify that the text of the

commitment order does not limit those offenses. The wording of

section 739 is permissive, not restrictive, allowing the district

attorney to file “any offense or offenses,” whether named in the

commitment order or shown by the evidence presented to the

magistrate. The fact that section 739 refers to “the”

commitment order, “the” evidence, and “the” magistrate must be

considered in the context of the statute’s purpose. Because

section 739 is not concerned with joinder, and because its

purpose is merely to explain the procedural steps that ordinarily

follow after the issuance of a particular commitment order, it is

perfectly natural for the statute to speak of “the” commitment

order, “the” evidence, and “the” magistrate. But the statute does

not preclude the possibility of multiple magistrate proceedings

supporting an information. In that situation, section 739’s

reference to “the” commitment order, “the” evidence, and “the”

magistrate signifies the commitment order, evidence, and

magistrate that corresponds to a particular offense charged in

the joint information. Thus, section 739 was followed to the

letter here. As to magistrate case 1499, the district attorney

filed in the superior court, “within 15 days after the

preliminary examination” (italics added) when discussing the

scope of the district attorney’s authority to amend an

information. (Henson, supra, 28 Cal.App.5th at p. 525, fn. 9, dis.

opn. of Smith, J.) The language of section 1009 tracks the

language in section 739, and what we say here about section 739

applies equally to section 1009.

33

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Opinion of the Court by Jenkins, J.

commitment, an information against the defendant which . . .

charge[d] the defendant with . . . the offense or offenses named

in the order of commitment” for that particular case. (§ 739.)

And the district attorney did the same as to magistrate case

3119. The information that satisfied section 739 as to each

magistrate case was the same information, but nothing in

section 739 prohibits that manner of proceeding.

Importantly, adopting the Court of Appeal dissent’s view

of section 739 would require us to violate a canon of statutory

interpretation, since it would mean that section 739 silently

modifies section 954. Under the reasoning employed by the

dissent, section 954’s plain language permits the joinder of

related charges at the information stage, but section 739 —

which is not even a joinder statute — precludes such joinder.

(See Henson, supra, 28 Cal.App.5th at p. 527, dis. opn. of Smith,

J.) Such a significant modification to section 954 cannot be

based solely on the fact that section 739 refers to “the”

commitment order, “the” evidence, and “the” magistrate. If the

Legislature had intended the joinder clause of section 954 to

depend on there being a previous joinder at the felony complaint

stage, we think it would have said so. It would not, instead,

have expected courts to infer that rule from the use of the

definite article in section 739, a statute that makes no reference

to section 954. Nor would it have expected courts to indulge in

the presumption offered by the dissenting opinion in this court

regarding the application of section 739. (See dis. opn. of

Kruger, J., post, p. 10.)19

19

It is true that section 739 imposes a 15-day time limit for

filing the information (see § 860), and this 15-day time limit

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Opinion of the Court by Jenkins, J.

The Court of Appeal dissent also argued that its linear

one complaint/one information model of criminal procedure was

necessary to avoid administrative confusion and related

disruption. (Henson, supra, 28 Cal.App.5th at pp. 523, 530, 532–

534, dis. opn. of Smith, J.) In our view, the administrative

complexities that may arise from the joinder of charges that

were the subject of different magistrate proceedings are no more

daunting than the administrative complexities that arise from a

court’s order consolidating multiple pleadings. We think these

complexities are easily addressed, and therefore we do not think

that considerations of judicial administration are material in

this context. For example, the complexities that arose here were

twofold. First, there was the unusual wrinkle that the office of

the public defender had a conflict as to some of the charges

alleged in the joint information but not as to others. But that

will not be true in most cases, and it is easily handled in the

manner that it was handled here. Second, the clerk’s office in

this case was confused because the filing of a joint information

alleging charges from different magistrate proceedings is

relatively rare, and therefore the pleading that the district

attorney attempted to file in this case was unfamiliar. But in

the future, a district attorney need only cite our opinion, and a

clerk’s office will be able to accept the filing and link the

places substantial constraint on the ability of the district

attorney to join related offenses from different magistrate

proceedings. Specifically, the joint information must be filed

within 15 days of the earliest commitment order. But we see no

reason why this constraint should be interpreted as an

indication that the Legislature did not intend to allow joinder in

those circumstances where the 15-day time limit can be met.

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PEOPLE v. HENSON

Opinion of the Court by Jenkins, J.

magistrate files with relative ease, just as clerk’s offices

regularly do when cases are consolidated by court order.

Of course, in counties where a trial court proceeding bears

the same case number as the magistrate proceeding that

precedes it, some provision will need to be made for cases in

which the district attorney joins charges from multiple

magistrate proceedings. Perhaps the best solution is the one

that obtained here: The case numbers of all the relevant

magistrate proceedings were listed on the joint information, and

one of those case numbers was designated as the case number

for purposes of the trial court proceeding that the information

was initiating. Likewise, some provision will need to be made

for linking multiple magistrate case files with a single trial court

case file. These are practical concerns that can be easily

addressed at the local level, and the advent of electronic filing

will no doubt facilitate that process. In all events, the

administrative tasks associated with the rule we announce

today do not require us to ignore the plain language of section

954. Accordingly, we decline to adopt the linear

one complaint/one information model for felony prosecutions.20

20

Defendant argues that due process protections preclude

the joinder of related offenses from different magistrate

proceedings. We disagree. Section 954 allows a defendant to

seek severance of joined charges “in the interests of justice and

for good cause shown,” thus protecting defendant’s due process

rights. (See, e.g., People v. Merriman, supra, 60 Cal.4th at p. 46

[“Even when [a reviewing court upholds the denial of a

severance motion, it] must further inquire whether events after

the court’s ruling demonstrate that joinder actually resulted in

‘gross unfairness’ amounting to a denial of defendant’s

constitutional right to fair trial or due process of law.”].)

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PEOPLE v. HENSON

Opinion of the Court by Jenkins, J.

D. Defendant’s Section 995 Motion

Having determined that Section 954’s joinder clause

supports joinder of counts 1 through 4 of the information, we

consider whether the trial court erred in ruling as to counts 1

through 4 “[t]hat the defendant had been committed without

reasonable or probable cause” (§ 995, subd. (a)(2)(B)). The trial

court found insufficient support for counts 1 through 4 because

it concluded that the record of two separate preliminary

examinations cannot be used to support a single information,

and therefore it only considered the record in magistrate case

3119. In the trial court’s view, the case pending before the

superior court was a continuation of magistrate case 3119, and

magistrate case 1499 was a separate proceeding. The trial court

thought it could not consider the record of a separate proceeding

without an order consolidating the two cases. We reject that

reasoning.

Because defendant did not avail himself of section 954’s

severance option, he cannot challenge the constitutionality of

that section as applied to him. Instead, defendant argues that,

despite the severance option, section 954 is facially

unconstitutional because it places the burden on defendants to

move for severance. Defendant cites no relevant authority for

this argument, which equally calls into doubt the

constitutionality of the Federal Rules of Criminal Procedure.

(See Fed. Rules Crim. Proc., rules 8, 14, 18 U.S.C. [allowing

joinder of appropriately related charges, subject to a motion for

severance].) Moreover, defendant concedes that related charges

may be joined at the felony complaint stage, which would place

him in the same position of needing to move for severance.

Defendant does not explain why joinder at the information stage

requires a different constitutional rule. Finally, defendant

cannot complain that the joint information failed to give him

notice of the charges alleged against him. Accordingly, we reject

defendant’s due process arguments.

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Opinion of the Court by Jenkins, J.

As we explain today, a magistrate proceeding is (and has

always been) a separate proceeding from a trial court

proceeding, and therefore the circumstance that the trial court

needed to look at the record of a separate proceeding to resolve

defendant’s section 995 motion is of no legal consequence.

Accordingly, we conclude that when a trial court addresses a

section 995 motion, it is free to consider the records of multiple

magistrate proceedings and no consolidation of those

proceedings, or their records, is necessary. Indeed, if a trial

court were not permitted to do so, then the district attorney’s

broad authority under section 954’s joinder clause to join related

charges in a single information would be unduly constrained.

Therefore, the trial court erred when it looked only at the record

of magistrate case 3119 and found no probable cause to support

charges 1 through 4 of the joint information.

III. DISPOSITION

The judgment of the Court of Appeal is affirmed except

insofar as it directs the consolidation of magistrate case 1499

and magistrate case 3119. In resolving defendant’s section 995

motion on remand, the trial court is free to consider the records

of both magistrate cases, and no consolidation of those cases is

necessary.

JENKINS, J.

We Concur:

CANTIL-SAKAUYE, C. J.

CORRIGAN, J.

GUERRERO, J.

38

PEOPLE v. HENSON

S252702

Dissenting Opinion by Justice Kruger

As the dissenting justice in the Court of Appeal observed,

the question of felony charging procedure at issue in this case

“arises from an unusual situation.” (People v. Henson (2018) 28

Cal.App.5th 490, 514 (dis. opn. of Smith, J.) (Henson).) The

majority gives an equally unusual answer.

As a rule, a court order is required to consolidate charges

stemming from different “accusatory pleadings” — a term that

includes both criminal complaints and the informations that

follow. (Pen. Code, § 954; see id., § 691, subd. (c).) But here the

district attorney argues that on the rare occasion when a

defendant is held to answer on two different criminal complaints

within the span of 15 days — the statutory time period for filing

an information after a defendant’s preliminary examination on

a complaint (id., § 739) — a prosecutor may file a single

information charging both sets of offenses, thereby in effect

consolidating the criminal cases without the court leave that

would be required in all other instances.

The majority approves this maneuver, understanding the

result as dictated by language in Penal Code section 954

allowing prosecutors to charge more than one offense in an

information. I do not share this understanding, and so I would

not approve this unusual deviation from standard charging

procedures.

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Kruger, J., dissenting

A.

On two separate occasions in early 2016, the district

attorney filed two separate criminal complaints against

defendant Cody Wade Henson, based on separate incidents.

Although the complaints were filed months apart — based on

incidents that likewise occurred months apart — it so happens

that the preliminary hearings in the two cases were held in

back-to-back weeks. The magistrate issued an order holding

Henson to answer to the charges in both cases.

Rather than filing two informations — one for each set of

charges — and asking the court to consolidate the cases, the

district attorney combined charges from both cases in a single

information and presented that “joint” information to the

superior court for filing. This was evidently not a kind of filing

the superior court had seen much before; confusion ensued while

court personnel worked to determine how, precisely, the two

criminal cases against Henson had come to be consolidated

without a court order and what consequences would follow

(including, ultimately, the disqualification of one of Henson’s

defense attorneys). Nor is it a kind of filing any California court

has seen much before. Indeed, the parties here have found no

other example of a similar “joint” information, filed without

court approval, in any reported decision in California judicial

history.

Whether this unusual filing was permissible turns

primarily on two sections of the Penal Code governing the early

stages of felony cases. Penal Code section 739, which governs

the filing of informations, provides: “When a defendant has been

examined and committed, as provided in Section 872, it shall be

the duty of the district attorney of the county in which the

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PEOPLE v. HENSON

Kruger, J., dissenting

offense is triable to file in the superior court of that county

within 15 days after the commitment, an information against

the defendant which may charge the defendant with either the

offense or offenses named in the order of commitment or any

offense or offenses shown by the evidence taken before the

magistrate to have been committed.” (Pen. Code, § 739 (section

739).)

Penal Code section 954, for its part, contains general

instructions for the handling of cases involving multiple offenses

or multiple statements of the same offense. We are here

concerned only with its first sentence, which contains two

clauses pertaining to the contents of accusatory pleadings. The

first clause — the so-called “joinder clause” — provides that a

single accusatory pleading may charge more than one offense:

“An accusatory pleading may charge two or more different

offenses connected together in their commission, or different

statements of the same offense or two or more different offenses

of the same class of crimes or offenses, under separate counts.”

(§ 954 (section 954).) The “consolidation clause,” for its part,

explains the process by which charges from separate accusatory

pleadings may be consolidated into a single accusatory pleading:

“[I]f two or more accusatory pleadings are filed in such cases in

the same court, the court may order them to be consolidated.”

(Ibid.)

Here is how the statutes ordinarily work in the typical

felony case that is initiated by the filing of a criminal complaint.

(See Pen. Code, § 806 [requirements for filing a criminal

complaint]; In re Harris (1989) 49 Cal.3d 131, 137; Lempert v.

Superior Court (2003) 112 Cal.App.4th 1161, 1168.) Once the

complaint is filed, “a magistrate of the court in which the

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PEOPLE v. HENSON

Kruger, J., dissenting

complaint is on file” (Pen. Code, § 859) conducts a preliminary

examination to determine whether the charges in the complaint

are supported by probable cause to believe the defendant

committed the offense or offenses, and, if so, issues an order

holding the defendant to answer. (Id., § 872, subd. (a); see

People v. Maldonado (2009) 172 Cal.App.4th 89, 94–95;

Lempert, at pp. 1168–1169.) Under section 739, the People then

have 15 days from the date of this commitment order to file an

information in superior court charging the same offenses or

other offenses shown by the preliminary evidence. (§ 739.) The

defendant is then arraigned — and ultimately tried — on the

charges in the information. (Lempert, at p. 1169; see

Maldonado, at pp. 94–95.)

If the People wish to consolidate the charges contained in

two or more informations (or other “accusatory pleadings . . .

filed in . . . the same court”), they must file a motion. (§ 954; see,

e.g., Belton v. Superior Court (1993) 19 Cal.App.4th 1279, 1281.)

In considering whether to grant the motion and consolidate

pleadings for trial, a court generally “weighs ‘the potential

prejudice’ ” to the defendant “ ‘against the state’s strong interest

in the efficiency of a joint trial.’ ” (People v. Merriman (2014) 60

Cal.4th 1, 37.) The law generally favors the joint trial of related

offenses, but whether to grant consolidation is ultimately within

the discretion of the trial court. (Ibid.)

In this case, the majority agrees with the district attorney

that no court permission was required to combine the charges

from the two complaints filed against Henson into a single

information. The majority reasons, as an initial matter, that the

consolidation clause of section 954 is inapplicable during the 15-

day statutory window between the preliminary examination on

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PEOPLE v. HENSON

Kruger, J., dissenting

the charges in the complaint and the filing of the information.

And although the majority, unlike the Court of Appeal, does not

then read into the consolidation clause an affirmative

authorization to do what the district attorney did here, the

majority does read such authorization into section 954’s

adjacent joinder clause, which permits a district attorney to

charge more than one offense in an accusatory pleading. The

power to charge more than one offense in a single information,

the majority reasons, necessarily includes the power to charge

different offenses that were the subject of different complaints,

different preliminary examinations, and different commitment

orders, so long as section 739’s 15-day time limit is satisfied with

respect to all charges. (Maj. opn., ante, at p. 2.)

In my view, this conclusion reads too much into section

954’s joinder clause and too little into the broader statutory

context and historical practice. Let’s take the joinder clause

first. Again, that clause simply provides, as relevant here, that

“[a]n accusatory pleading may charge two or more different

offenses” if the offenses are sufficiently related. (§ 954.)

Nothing in this language speaks directly to the question before

us. Certainly the joinder clause permits a district attorney to

charge more than one offense in an information (or in any other

accusatory pleading, for that matter). But contrary to the

majority’s seeming suggestion (maj. opn., ante, at pp. 27–28),

this does not mean the district attorney can charge any two

related offenses the district attorney pleases, in any manner the

district attorney pleases. The joinder clause offers no explicit

authority to charge more than one offense where the relevant

offenses were charged in different complaints, subject to

different preliminary examinations, and the subject of different

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PEOPLE v. HENSON

Kruger, J., dissenting

commitment orders. Nor does it otherwise address the steps a

prosecutor must follow in filing any pleadings, or the process by

which charges already filed may be combined into a single

pleading for purposes of trial. Other provisions address those

matters, and the joinder clause contains no language purporting

to override other applicable law.

In case there was any doubt, history confirms that the

purpose of the joinder provision was simply to do what it says:

allow the charging of more than one offense in a single

accusatory pleading. Before the joinder clause was added in its

present form in 1915, the California rule was generally that “the

accusatory pleading could charge but one offense.” (People v.

Tideman (1962) 57 Cal.2d 574, 579; see People v. Taggart (1872)

43 Cal. 81, 83 [demurrer to indictment proper “on the ground

that it charges two offenses”].)1 “In 1915, however, section 954

was amended to, for the first time in this state, . . . authorize the

charging in one indictment or information of ‘two or more

different offenses connected together in their commission, or

different statements of the same offense or two or more different

offenses of the same class of crimes.’ ” (Tideman, at p. 580; see

14 Cal.Jur., supra, Indictment and Information, § 50, p. 65.)

The effect of these changes was to abrogate “the former rule

forbidding the charging of more than one offense in an

indictment,” under which “the people might be required at the

1

An earlier amendment to section 954, enacted in 1905, had

authorized the joinder of different offenses or different

statements of the same offense, but only “if all related to the

same act or event.” (14 Cal.Jur. (1924) Indictment and

Information, § 50, p. 65; see also id. at pp. 65–66 [detailing

amendment history of § 954].)

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PEOPLE v. HENSON

Kruger, J., dissenting

trial to elect upon which charge it would proceed.” (14 Cal.Jur.,

supra, Indictment and Information, § 53, p. 69.) Nothing in this

post-1915 grant of permission to charge multiple offenses

necessarily implies a power to combine previously separate

cases at the information stage, as the district attorney did here.

For more concrete guidance about what procedures a

prosecutor must follow in combining previously separate

charges in a single information, we have to look beyond section

954’s joinder clause. One place to start is the very next clause

of section 954, the consolidation clause, which says that “if two

or more accusatory pleadings are filed in such cases in the same

court, the court may order them to be consolidated.” (Italics

added.) And another place to look is section 739, which contains

instructions specific to the filing of informations. Section 739,

as relevant here, places a “duty” on the district attorney to file

“an information” charging the defendant with the offenses

“named in the order of commitment” or “shown by the evidence

taken before the magistrate to have been committed.” (§ 739,

italics added.) The uses of the singular — “order,” not “orders,”

“magistrate,” not “magistrates” — suggest that a felony

information is based on the evidence adduced at a single

preliminary hearing before a single magistrate. On this

understanding, section 739 works in harmony with both clauses

of section 954: The People can, of course, file more than one

information, and under section 954’s joinder clause, each

information may charge more than one offense based on the

preliminary hearing evidence. If the People then wish to

consolidate charges for trial, they may do so, but they must first

seek the court’s leave under the consolidation clause of section

954.

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PEOPLE v. HENSON

Kruger, J., dissenting

The majority worries that accepting this straightforward

view of the statutory scheme “would require us to violate a canon

of statutory interpretation, since it would mean that section 739

silently modifies section 954.” (Maj. opn., ante, at p. 34.) But it

violates no canon of statutory interpretation to harmonize two

statutes; indeed we must do so whenever harmonization is

“ ‘reasonably possible,’ ” as it is here. (State Dept. of Public

Health v. Superior Court (2015) 60 Cal.4th 940, 955.)

The Court of Appeal rejected this view for a different

reason. In particular, it dismissed the wording of section 739 as

unilluminating, citing the general interpretive principle that

“ ‘the singular number includes the plural, and the plural the

singular.’ ” (Henson, supra, 28 Cal.App.5th at p. 511, fn. 13,

quoting Pen. Code, § 7.) But the general principle is not an

absolute rule; as Penal Code section 7 itself cautions, “[w]ords

and phrases must be construed according to the context.” (Pen.

Code, § 7, subd. (16); see People v. Rodriguez (2012) 55 Cal.4th

1125, 1133 [the plural does not include the singular where

statutory context indicates otherwise].) And, as particularly

relevant here, we have also declined to apply section 7’s general

singular-includes-the-plural rule where it would “lead to an

interpretation that runs counter to both the legislative purpose

of the statutory scheme and subsequent historical practice.”

(People v. Navarro (2007) 40 Cal.4th 668, 680.) Similar

considerations in this case suggest we ought to read section 739

as it was written, rather than through the lens of section 7.

So read, section 739 describes a linear charging process —

where the offenses charged in the information are the same

offenses shown by the evidence presented at the preceding

preliminary hearing — that matches up with the statute’s

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PEOPLE v. HENSON

Kruger, J., dissenting

historical operation. The predecessor to section 739 was first

enacted in 1880. As originally enacted, Penal Code former

section 809 provided: “When a defendant has been examined

and committed, as provided in section eight hundred and

seventy-two of this code, it shall be the duty of the district

attorney, within thirty days thereafter, to file in the superior

court of the county in which the offense is triable an information

charging the defendant with such offense.” Former section 809

necessarily referred to a single “such offense” because, as

already noted, from the time former section 809 was enacted in

1880 until 1915, “the accusatory pleading could charge but one

offense.” (People v. Tideman, supra, 57 Cal.2d at p. 579.) This

meant that for the first several decades of former section 809’s

existence, there was no doubt that an information was limited

to charging the offense that had been the subject of a single

preliminary examination and/or commitment order — for the

simple reason that the information could not charge any other

offense in addition to that offense. (See People v. Vierra (1885)

67 Cal. 231, 234 [“[S]ection 809 refers to the offense shown by

the testimony disclosed in the depositions taken on the

preliminary examination before the committing magistrate”];

People v. Nogiri (1904) 142 Cal. 596, 598 [power of prosecutor

under section 809 limited to filing “an information charging the

defendant with the offense for which, after judicial inquiry, he

has been held to answer”]; People v. Bird (1931) 212 Cal. 632,

637 [the “power of the district attorney under section 809 . . .

was confined to the filing of an information charging the offense

designated in the order of commitment”].)

Later, after section 954 was modified to allow for the

charging of more than one offense in a single accusatory

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Kruger, J., dissenting

pleading (see p. 6, ante), the Legislature would amend Penal

Code former section 809 accordingly — allowing an information

issued under former section 809 to charge “the offense, or

offenses, named in the order of commitment, or any offense, or

offenses, shown by the evidence taken before the magistrate to

have been committed.” (Stats. 1927, ch. 617, § 1, p. 1045, italics

added.)2 But the Legislature did not alter the language of

former section 809 in any way that would suggest that it also

intended to alter the relationship between the facts presented

at the preliminary examination and the charges brought in the

ensuing information.

Of course, nothing in section 739 expressly forbids filing

an information that draws from the evidence presented at more

than one preliminary hearing. But section 739’s instructions do,

at the very least, presume the information will match the

evidence shown at the preliminary hearing on charges filed in a

criminal complaint. And that presumption likewise fits with the

other relevant piece of section 954, the consolidation clause —

creating a straightforward process for consolidating charges

that have, up to that point in time, been the subject of separate

pretrial proceedings.

The majority’s position, by contrast, reads section 954’s

joinder clause as effectively creating a hidden mechanism for the

de facto consolidation of cases without need for court leave.

2

This change followed a 1927 recommendation by a blue-

ribbon legislative commission to modify former section 809 to

“expressly permit the information to charge either the crime

named in the order of commitment or any offense shown by the

evidence taken before the magistrate.” (Com. for the Reform of

Criminal Procedure, Rep. to Legislature (1927) p. 7.)

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Kruger, J., dissenting

Henson’s case provides an illustration of how that consolidation

works in practice: Henson was first charged on March 7, 2016,

when “a complaint was filed in Fresno County Superior Court”

and was assigned “case No. F16901499.” (Henson, supra, 28

Cal.App.5th at p. 495.) The People then commenced a second

case against Henson on May 19, 2016, when “a complaint was

filed in Fresno County Superior Court” and was assigned “case

No. F16903119.” (Id. at p. 496.) When the prosecutor

subsequently “attempted to file with the clerk’s office an

information bearing both case numbers” the “pleading

apparently was rejected, as the file stamp bearing the date of

November 29 was crossed out by hand and initialed.” (Ibid.)

“On appeal, the People represent that after the clerk’s office

rejected the information, the information was presented to the

court clerk/judicial assistant in the arraignment department,

who wrote ‘CONSOLIDATED’ and accepted and filed the

information.” (Id. at p. 497, fn. 3.) The practical result was to

take what had been two criminal cases and make them one

without a court order. But the Legislature created a clear

mechanism for consolidating previously separate criminal cases:

Section 954’s consolidation clause, which requires a motion. 3

The text of section 954 does not mention any other method for

consolidating criminal cases, and there is no reason to think the

Legislature intended the joinder clause to play that role.

Indeed, some skepticism is warranted on this score,

because the de facto consolidation mechanism is a curious one.

3

To be sure, the statutory language speaks of consolidating

“pleadings,” not “cases.” (§ 954.) But cases follow pleadings; the

effect of consolidating accusatory pleadings is to consolidate the

cases to which they pertain. (Cf. maj. opn., ante, at p. 23, fn. 13.)

11

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Kruger, J., dissenting

On the majority’s view, the joinder-clause-based consolidation

mechanism springs into existence only in cases like this one,

where one or more magistrates happen to issue two or more

commitment orders within a roughly two-week window. (See

maj. opn., ante, at p. 4.) As the district attorney acknowledged

at oral argument, it is unusual for two preliminary hearings to

take place within 15 days of one another; filing a single

information on the basis of multiple commitment orders can

occur only if the prosecutor is able to “bring the stars into line.”

And the new mechanism inferred by the majority has a

remarkably short lifespan. After appearing unexpectedly to

surprise the defendant and the court, it then vanishes again

after just 15 days — the Cheshire Cat of procedural rules. I

grant it is not impossible to read section 954 this way, but the

reading does not seem especially likely. Why would the

Legislature have intended to make the question whether court

permission is necessary to consolidate two cases turn on the

happenstance of whether two commitment orders issue within

15 days of each other? Neither the district attorney nor the

majority explains.

Historical practice generally confirms that the joinder

clause has not been understood in the way the district attorney

urges. (See People v. Navarro, supra, 40 Cal.4th at p. 680.)

Indeed, no party has pointed us to any published case, apart

from the decision below, approving the filing practice in which

the prosecutor engaged below — not since 1951, when section

954 was last modified; not since 1927, when the statutory

forerunner to section 739 assumed essentially its present form;

and not since 1915, when section 954 was modified to allow

informations to charge multiple offenses. The majority opinion

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PEOPLE v. HENSON

Kruger, J., dissenting

does point to a few unpublished cases briefly mentioning —

without much discussion — the filing of an information like the

one in this case. But a small handful of unpublished decisions,

issued over the course of more than a century, does not suffice

to show that the practice has gained any significant acceptance

in the superior courts. (Cf. maj. opn., ante, at p. 28, fn. 15.) And

again, the history of this very case suggests the opposite: The

district attorney’s joint information caused significant

administrative confusion here precisely because the filing was

not consistent with generally accepted procedures.

B.

In approving the joint information in this case, the

majority expresses concern that district attorneys have

sufficient latitude to join related charges at the inception of a

felony proceeding. The majority marks that inception point as

the filing of the information because it is the first step of the

prosecution that by law must be handled by district attorneys,

and only district attorneys, and the first step that takes place in

superior court, by law acting as the superior court.

As a technical matter, the majority’s view of when a felony

proceeding begins is plausible, if not unassailable. (Cf. In re

Harris, supra, 49 Cal.3d at p. 137 [“the general rule” is that “it

is the complaint that initiates felony proceedings”]; Lempert v.

Superior Court, supra, 112 Cal.App.4th at p. 1168 [“the

prosecution commences with the filing of the felony complaint”];

People v. Dominguez (2008) 166 Cal.App.4th 858, 865 [“Prior to

the unification of the trial courts, felony proceedings commenced

in the municipal court with the filing of a complaint”]; People v.

Maldonado, supra, 172 Cal.App.4th at p. 94 [same]; Le Louis v.

Superior Court (1989) 209 Cal.App.3d 669, 679, 683 [“a

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Kruger, J., dissenting

preliminary examination can only be properly conceived as a

component proceeding of the criminal action which commences

with the filing of a complaint and can continue through superior

court proceedings, including trial, resulting in judgment,”

meaning that “[p]etitioner’s preliminary examination,” for

which “two separate complaints were consolidated,” occurred “at

an earlier stage of the same prosecution which remains pending

against him in superior court”]; Pen. Code, § 859 [referring to

person “charged with the commission of a felony by a written

complaint” as the “defendant”].)4

4

The same can be said for the majority’s view that “the

felony complaint that initiated the magistrate proceeding was

not filed in the municipal court or in any court.” (Maj. opn., ante,

at p. 30; cf., e.g., Pen. Code, § 859 [“When the defendant is

charged with the commission of a felony by a written complaint

subscribed under oath and on file in a court within the county in

which the felony is triable, he or she shall, without unnecessary

delay, be taken before a magistrate of the court in which the

complaint is on file,” italics added]; In re Geer (1980) 108

Cal.App.3d 1002, 1008 [pointing out the “interchangeable use of

‘court’ and ‘magistrate’ in various other portions of the Penal

Code relating to preliminary proceedings,” including Pen. Code,

§§ 859, 859a, 868, 1002, 1383 & 1388].) Among other things, the

majority’s view that felony complaints are not filed in a court

might imply that magistrates do not have the authority to

consolidate felony complaints under section 954. But reported

case law contains numerous examples of felony complaint

consolidation. (See, e.g., People v. Soper (2009) 45 Cal.4th 759,

769; Price v. Superior Court (2001) 25 Cal.4th 1046, 1051; People

v. Indiana Lumbermens Mutual Ins. Co. (2012) 202 Cal.App.4th

1541, 1544, 1546; Berardi v. Superior Court (2008) 160

Cal.App.4th 210, 223.) I do not understand the majority opinion

to call any of this into question (see maj. opn., ante, at p. 22,

fn. 12); the conceptual distinction it now draws between “courts”

14

PEOPLE v. HENSON

Kruger, J., dissenting

But it is unclear why this technical characterization

should make a substantive difference in how we view the

procedures for combining offenses subject to different

“magistrate cases,” as the majority calls them, in a single

information.5 The majority’s primary response is historical: it

points out that before 1972, felony complaints (unlike felony

informations) could be filed directly by private citizens and did

not have to be signed by the district attorney. The majority

reasons that “[i]f multiple crime victims filed multiple felony

complaints alleging related offenses, the district attorney’s only

opportunity to exercise his or her express right to join those

offenses was when filing the information.” (Maj. opn., ante, at

p. 22.)

To the extent the majority is raising a historical concern

about the purpose the joinder clause would have served in a pre-

1972 case initiated by the filing of citizen complaints, the

concern is unfounded. Under the old, pre-1915 rule, each felony

information could only have charged one offense, no matter how

many offenses the complaint alleged or the evidence at the

preliminary hearing showed. The 1915 enactment of the joinder

clause served the basic purpose of enabling the district attorney

to file more than one charge in the information, based on the

and “magistrates” appears largely limited to the particular

charging issue we confront today.

5

The majority refers to proceedings before the filing of the

information as “magistrate cases” (as opposed, it seems, to the

“real” felony cases that begin afterward). This term is a new

invention (maj. opn., ante, at p. 3, fn. 2); it appears nowhere in

our statutes or case law.

15

PEOPLE v. HENSON

Kruger, J., dissenting

offenses listed in each citizen’s complaint or shown by the

evidence at the preliminary hearing. The district attorney could

then move the court for consolidation of the pleadings before

trial.

To the extent the majority’s concern is instead simply that

the prosecutor must have sufficient opportunity to combine

related offenses for purposes of trial, the concern is misplaced.

To read the relevant statutes as preserving the regular

procedure in all cases does not mean the prosecutor cannot

combine related offenses; it simply requires that the prosecution

seek the court’s permission first.

Adhering to regular procedure for consolidating cases

makes practical sense. It keeps the burden to move for

consolidation of charges where it normally falls — on the

prosecution — rather than shifting the burden to the defendant

to seek severance of charges where a joint trial threatens

significant prejudice to the defendant’s interests. Adhering to

regular procedure also helps to avoid some of the types of

administrative difficulties that emerged in this case as a result

of the district attorney’s unusual filing, including the

disqualification of defense counsel without prior notice to the

defendant or the court and continued delay while the defendant

remained in custody. And adhering to regular procedure

respects the superior courts’ ordinary case management

practices. Ordinarily, case dockets are managed, tracked, and

consolidated pursuant to the regular administrative processes

of the superior courts. But “under the majority’s holding,

[courts] will now be required to merge the relevant case dockets

under a lead case self-designated by the People, something that

16

PEOPLE v. HENSON

Kruger, J., dissenting

heretofore occurred only pursuant to court order.” (Henson,

supra, 28 Cal.App.5th at p. 533 (dis. opn. of Smith, J.).)

It is certainly true, as the majority says, that the superior

courts can adopt new administrative rules for the rare

circumstance in which prosecutors file informations like this

one. (See maj. opn., ante, at pp. 35–36.) Such rules may well

help ameliorate the disruption caused by disappearing case

numbers, criminal cases effectively consolidated without a

consolidation motion, and defense attorneys on previously

separate cases suddenly finding themselves working on the

same, now-unified case. On the whole, however, I am not

persuaded that the law requires the superior courts to face these

problems — not even in the rare situation when the stars align

to allow for two preliminary examinations and commitment

orders in a single 15-day period.

There is a simpler, more straightforward answer possible

here. Felony informations may indeed charge multiple offenses,

as provided by section 954. But they may charge only those

offenses contained in a single commitment order or shown by

the evidence at a single preliminary hearing, as provided by

section 739. The district attorney is not without recourse: after

the information is filed in a particular case, the court may, upon

the request of the district attorney and after conducting the

requisite inquiry, “order the consolidation of that case with

another case, or other cases, in the same posture” — as courts

regularly do. (Henson, supra, 28 Cal.App.5th at p. 527 (dis. opn.

of Smith, J.).) The critical point is that consolidation is a matter

for the court to decide after full consideration of a filed motion,

not for the district attorney to decide unilaterally.

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PEOPLE v. HENSON

Kruger, J., dissenting

Taken as a whole, this long-standing set of procedures

provides a simple, streamlined, and well-understood framework

for felony charging. I see no reason to deviate from those

procedures here. And so, with respect, I dissent from the

majority’s approval of the unusual filing in this case.6

KRUGER, J.

We Concur:

LIU, J.

GROBAN, J.

6

The majority’s analysis of Henson’s Penal Code section

995 motion (maj. opn., ante, at pp. 37–38) depends on its view

that the filing of the joint information was proper (see id. at

p. 2). As a result, the majority does not address alternative

grounds for affirming the Court of Appeal’s judgment, including

the possibility that Henson forfeited his objection to the

information by failing to demur (see Henson, supra, 28

Cal.App.5th at pp. 503–504 & fns. 6, 8). I accordingly do not

address those alternative grounds either. For reasons already

explained, I respectfully disagree with the reasons the majority

does give for affirming the judgment.

18

See next page for addresses and telephone numbers for counsel who

argued in Supreme Court.

Name of Opinion People v. Henson

__________________________________________________________

Procedural Posture (see XX below)

Original Appeal

Original Proceeding

Review Granted (published) XX 28 Cal.App.5th 490

Review Granted (unpublished)

Rehearing Granted

__________________________________________________________

Opinion No. S252702

Date Filed: August 1, 2022

__________________________________________________________

Court: Superior

County: Fresno

Judge: W. Kent Hamlin

__________________________________________________________

Counsel:

Lisa A. Smittcamp, District Attorney, Robert Whalen, Chief Deputy

District Attorney, and Douglas O. Treisman, Deputy District Attorney,

for Plaintiff and Appellant.

Barbara A. Smith, under appointment by the Supreme Court, for

Defendant and Respondent.

C. Matthew Missakian and Stephen K. Dunkle for California

Attorneys for Criminal Justice as Amicus Curiae on behalf of

Defendant and Respondent.

Counsel who argued in Supreme Court (not intended for

publication with opinion):

Douglas O. Treisman

Deputy District Attorney

2100 Tulare Street

Fresno, CA 93721

(559) 600-4387

Barbara A. Smith

Attorney At Law

8359 Elk Grove Florin Road, #103-305

Sacramento, CA 95829

(619) 559-6427