# Mitchell v. Superior Court

> California Supreme Court · December 28, 1989 · 49 Cal. 3d 1230

URL: https://www.frixlaw.com/law-library/cases/9790849

## Case

- **Full name:** JAMES LLOYD MITCHELL Et Al., Petitioners, v. THE SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO, Respondent; THE PEOPLE, Real Party in Interest
- **Court:** California Supreme Court
- **Decided:** December 28, 1989
- **Citations:** 49 Cal. 3d 1230; 265 Cal. Rptr. 144; 783 P.2d 731; 1989 Cal. LEXIS 2106
- **Precedential status:** Published
- **Opinion:** Concurrence by Mosk
- **Judges:** Eagleson, Mosk, Lucas, Panelli
- **Cited by:** 69 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9790849

## How later opinions describe it (automated extraction)

- stating that the general/specific statute rule “do[es] not purport to limit the People’s discretion to prosecute under a general statute that provides a sanction less severe than that called for under a specific statute”

## Opinion text

MOSK, J., Concurring.
I concur in the result of the majority opinion. However, I cannot agree with its criticism and evasion of a controlling decision of this court: Safer v. Superior Court (1975) 15 Cal.3d 230 [ 124 Cal.Rptr. 174 , 540 P.2d 14 ] (hereafter Safer). Stare decisis requires a better fate for an authoritative opinion.
There is no question that a prosecutor may choose to charge a defendant under either Penal Code section 11229 or Code of Civil Procedure section 1209 “if the defendant were thereby deprived of his right to trial by jury” {Safer, 15 Cal.3d at p. 241, fn. 22 ). That is typical prosecutorial discretion.
However, the prosecutor may not make that election for the purpose of depriving a defendant of his constitutional right to a jury trial. As this court declared in Safer, supra, 15 Cal.3d at page 241 , “the attempted transformation of contempt proceedings brought under the Penal Code into a prosecution under the Code of Civil Procedure achieves a possible reduction of punishment only at the cost of a cherished protection,” i.e., the right to a jury trial. We concluded, “We hold that the district attorney does not have the power to force defendants to make such an exchange.” (Ibid., italics added.)
The majority cavalierly brush Safer aside as mere dictum, despite its holding. Theirs is a strategic editorial device: to avoid the impact of a controlling opinion, they pronounce it to be mere dictum and then ignore it *1258 by deciding directly to the contrary. Such technique might be tolerable in some relatively trivial instances, but not when the constitutional right to a jury trial is involved.
Other cases have reached a conclusion similar to that in Safer . For example, in People v. Shults (1978) 87 Cal.App.3d 101, 108 [ 150 Cal.Rptr. 747 ], the court| held that the striking of prior convictions, thus reducing the offense to be tried, “may not have the effect of depriving appellant of his right to a jury trial. . . .” In People v. Bowden (1978) 86 Cal.App.3d Supp. 1, 6 [ 150 Cal.Rptr. 633 ], it was held that “a court cannot, for its convenience or (even for some more worthy motive, deny a defendant a jury trial by the device of dismissing [one charge for another] based on the same facts . . . .”
Except for their treatment of the California constitutional right to a jury trial—a right more comprehensive than that provided in cases interpreting the federal Constitution—the majority reach the correct disposition of this case on its facts.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9790849. Public record. Not legal advice.