Filed 11/14/13
                             CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              SIXTH APPELLATE DISTRICT


THE PEOPLE,                                        H037681
                                                  (Santa Clara County
        Plaintiff and Respondent,                  Super. Ct. No. C1107516)

        v.

ANTHONY SCOTT,

        Defendant and Appellant.



        Following a preliminary hearing, on June 15, 2011, Anthony Scott (Scott) was
held to answer to one count of second degree robbery (Pen. Code, §§ 211-212.5, count
one). Subsequently, on June 23, 2011, the Santa Clara County District Attorney filed an
information in which Scott was charged with one count of second degree robbery (§§
211-212.5, count one),1 one misdemeanor count of grand theft (§§ 484-487, count two),
one count of battery (§§ 242-243, subd. (a), count three) and one count of disturbing the
peace (§ 415, count four).
        On June 27, 2011, at a hearing before Judge Pennypacker on the Master Trial
Calendar, the District Attorney moved the court to dismiss count one (the only felony) for
insufficiency of the evidence. After the court dismissed the robbery count, the court
asked defense counsel, "And the pleas as to Counts 2, 3, and 4, the misdemeanors?"
Defense counsel responded, "Not guilty, Your Honor." The matter was continued for a
pretrial conference until July 5 on a time not waived basis.


1
        All undesignated section references are to the Penal Code.
       On July 5, 2011, Scott entered a time waiver and the matter was continued to
August 2, 2011, in Department 49. On August 2, the matter was continued again until
September 1, in Department 49. Eventually, on the day set for trial in Department 47—
November 14, 2011—the prosecutor filed a "First Amended" misdemeanor complaint in
which Scott was charged with one count of petty theft of personal property (§§ 484, subd.
(a)-488, count one) one count of battery (§§ 242-243, subd. (a), count two) and one count
of disturbing the peace (§ 415, count three). After a jury trial on these three
misdemeanors, Scott was found guilty as charged.
       On November 22, 2011, Scott filed a "Misdemeanor" notice of appeal.
                                    Appellate Jurisdiction
       At the outset of this case, we questioned whether appellate jurisdiction was vested
in this court or the appellate division of the superior court.
       We asked the parties to brief the issue. The Attorney General responded that
appellate jurisdiction in this case was vested in the appellate division of the superior
court. Therefore, pursuant to this court's inherent power to ensure the orderly
administration of justice, the Attorney General requested that we transfer the matter there.
Scott did not agree. Scott argued that the misdemeanor complaint filed in this case
should not defeat jurisdiction because it was a formality, filed on the first day of trial,
which did not change the essential nature of the case. Scott asserted that the charging
document that vested jurisdiction in this court had already been filed and the amended
pleading merely reduced the grand theft charge to petty theft and a new case number was
not assigned. Scott contended that there is no reason to treat this case as anything but a
felony for purposes of determining appellate jurisdiction.
       On May 10, 2013, we transferred jurisdiction over this case to the appellate
division of the superior court for disposition.
       Subsequently, Scott petitioned the California Supreme Court to review our
interlocutory order. The Supreme Court granted review and transferred the case back to
                                               2
this court with directions to vacate our May 10, 2013 order transferring the case to Santa
Clara County Superior Court Appellate Division, and to order respondent to show cause
why the appeal in People v. Scott, H037681, should not be heard by this court.
Respondent has filed a return to the order to show cause and Scott has filed a reply.
       For the following reasons, we conclude after considering the arguments of the
parties that appellate jurisdiction over this case is vested in the Santa Clara County
Superior Court Appellate Division. It is commonly understood that a "grant and transfer"
order does not necessarily reflect the high court's view of the merits of a case. (Peat,
Marwick, Mitchell & Co. v. Superior Court (1988) 200 Cal.App.3d 272, 284.) Absent
express directions, we remain free to reach the same conclusion we did in our earlier
review of this issue. (See, e.g., U.D. Registry, Inc. v. Superior Court (1995) 39
Cal.App.4th 1241, 1243.)
                                         Discussion
       California Rules of Court, rule 8.304 (hereafter rule 8.304) governs the filing of
appeals in the Court of Appeal. Subdivision (a) provides in pertinent part, "(1) To appeal
from a judgment or an appealable order of the superior court in a felony case . . . the
defendant or the People must file a notice of appeal in that superior court. . . . [¶] (2) As
used in (1), 'felony case' means any criminal action in which a felony is charged,
regardless of the outcome. . . . [It] includes an action in which the defendant is charged
with: [¶] (A) A felony and a misdemeanor or infraction, but is convicted of only the
misdemeanor or infraction; [¶] (B) A felony, but is convicted of only a lesser offense; or
[¶] (C) An offense filed as a felony but punishable as either a felony or a misdemeanor,
and the offense is thereafter deemed a misdemeanor under . . . section 17(b)." (Italics
added.)
       Similarly, section 1235, subdivision (b) provides that "[a]n appeal from a
judgment or appealable order in a felony case is to the court of appeal for the district in
which the court from which the appeal is taken is located."
                                              3
       Section 691 provides the necessary definitions. " 'Felony case' means a criminal
action in which a felony is charged and includes a criminal action in which a
misdemeanor or infraction is charged in conjunction with a felony." (§ 691, subd. (f),
italics added.) A " '[m]isdemeanor or infraction case' means a criminal action in which a
misdemeanor or infraction is charged and does not include a criminal action in which a
felony is charged in conjunction with a misdemeanor or infraction." (§ 691, subd. (g),
italics added.)
       The Advisory Committee Comment to rule 8.304 explains that rule 8.304 "makes
it clear that a 'felony case' is an action in which a felony is charged regardless of the
outcome of the action." The comment goes on to state, "[t]hus the question whether to
file a notice of appeal under this rule or under the rules governing appeals to the appellate
division of the superior court (rule 8.700 et seq) is answered simply by examining the
accusatory pleading: if that document charged the defendant with at least one count of
felony (as defined in . . . section 17(a)), the Court of Appeal has appellate jurisdiction and
the appeal must be taken under this rule even if the prosecution did not result in a
punishment of imprisonment in the state prison. [¶] It is settled case law that an appeal is
taken to the Court of Appeal not only when the defendant is charged with and convicted
of a felony, but also when the defendant is charged with both a felony and a misdemeanor
(Pen. Code, § 691(f)) but is convicted of only the misdemeanor (e.g. People v. Brown
(1970) 10 Cal.App.3d 169); when the defendant is charged with a felony but is convicted
of only a lesser offense (Pen. Code, § 1159; e.g. People v. Spreckels (1954) 125
Cal.App.2d 507); and when the defendant is charged with an offense filed as a felony but
punishable as either a felony or a misdemeanor, and the offense is thereafter deemed a
misdemeanor under . . . section 17(b) (e.g. People v. Douglas (1999) 20 Cal.4th 85;
People v. Clark (1971) 17 Cal.App.3d 890). [¶] Trial court unification did not change
this rule . . . ." (Italics added.)


                                              4
       A review of the cases cited in the Advisory Committee Comment quoted above
convinces this court that this case is a misdemeanor case.
       In People v. Brown, supra, 10 Cal.App.3d 169 (Brown), which was decided prior
to unification of the municipal and superior courts, an information accused the defendant
of a felony (burglary) and a misdemeanor (contributing to the delinquency of her two
minor daughters). (Id. at p. 171.) The jury deadlocked on the burglary charge but found
the defendant guilty of contributing to her daughters' delinquency. She was sentenced to
county jail and fined. (Ibid.)
       In People v. Spreckles, supra, 125 Cal.App.2d 507 (Spreckels), the defendant was
charged with the crime of assault by means of force likely to produce great bodily injury,
a felony. (Pen. Code, § 245.) Following a trial on that charge, the jury returned the
following verdict; " 'Guilty of the crime of Misdemeanor, to wit, Simple Assault, a lesser
offense necessarily included within the crime charged.' " (Id. at p. 509.)
       In People v. Douglas, supra, 20 Cal.4th 85 (Douglas), the defendant was charged
with one count each of obtaining by a false declaration more than $400 in health care
benefits, for which he was ineligible (Welf. & Inst. Code, § 14014), and grand theft from
the State of California (Pen. Code, § 487, subd. (a)), both charged as felonies. He
pleaded no contest to both counts. According to the change of plea form and colloquy,
the defendant's plea was based on representations from the trial court that it would treat
both offenses as misdemeanors pursuant to section 17 and would place him on probation
for three years with no additional jail time. (Id. at p. 88.)
       In People v. Clark, supra, 17 Cal.App.3d 890 (Clark),2 defendant Tait was
charged by information with a violation of then Health and Safety Code section 11503—

2
       In Clark, a case that occurred before trial court unification, the Court of Appeal
consolidated two different matters that were separately filed, briefed and argued; the
court elected to deal with the two matters in a single opinion because they both raised
problems concerning the jurisdiction and powers of a superior court in cases involving
felony offenses connected with misdemeanor offenses. (Clark, supra, 17 Cal.App.3d at
                                               5
offer to sell a narcotic and delivery of a non-narcotic substance. (Stats.1959, ch. 1112,
§ 6, p. 3194, repealed by Stats.1972, ch. 1407, § 2, p. 2987.) The offense was one of the
offenses that could be punished, at the discretion of the trial court, either by a county jail
sentence or by a state prison sentence. When defendant appeared for arraignment, the
superior court, on its own motion and over the objection of the district attorney amended
the information striking the word "felony" and replacing it with the word "misdemeanor."
The court certified the information, as so amended, back to the municipal court for
further proceedings. (Id. at pp. 894-895.) The People petitioned for a writ of mandate
seeking to vacate the order and to direct the superior court to proceed with the
prosecution in that court. (Id. at p. 895.) The Clark court directed that a peremptory writ
of mandate issue, in which the superior court was directed to vacate its orders purporting
to amend the information and certify the case to a municipal court and directed it,
thereafter, to proceed in accordance with the opinion. (Id. at p. 899.) The Clark court



p. 893.) Defendant Clark was charged with a violation of section 11482 of the Welfare
and Institutions Code, a misdemeanor, and with a violation of subdivision 1 of section
487, a felony. The misdemeanor count and the felony count were properly and
necessarily joined by virtue of the rule of Kellett v. Superior Court (1966) 63 Cal.2d 822.
After Clark was bound over to trial in superior court, the matter was continued several
times because of a pending Supreme Court decision. In People v. Gilbert (1969) 1 Cal.3d
475, 479-480, the Supreme Court held that a prosecution for welfare fraud could not be
prosecuted as grand theft under section 487 and that only a prosecution under the
misdemeanor statute was permissible. Based on the holding in Gilbert, the grand theft
count was dismissed on motion by the People, leaving only the misdemeanor count
standing against defendant Clark. Clark moved to have the case dismissed on the ground
that the superior court had no jurisdiction over a misdemeanor not joined with a felony;
the motion was denied. Clark's petition for a writ of prohibition was denied by the Court
of Appeal without opinion. Thereafter, the case was submitted to the trial court on the
transcript of the preliminary examination; Clark was found guilty; proceedings were
suspended and Clark was placed on probation. She appealed from the judgment (order
granting probation). (Clark, supra, at p. 894.) The Clark court held that defendant Clark
should have sought to have the case transferred to the municipal court, rather than seek an
absolute dismissal of the case, to which she was not entitled; and the fact that she was
tried in Superior Court did not prejudice her. (Id. at p. 897-898.)
                                               6
explained that the Legislature had determined that violations of section 11503 of the
Health and Safety Code, under some circumstances, could justify treatment as a felony.
The Clark court noted that the discretion to choose between treatment as a felony or as a
misdemeanor was given, in the first instance, to the prosecuting attorney (Pen. Code, §
17, subd. (b)(4)); next a power to select the class of treatment was given to the magistrate
at the preliminary hearing (Pen. Code, § 17, subd. (b)(5)), but only with the concurrence
of the prosecuting attorney. However, the power of the superior court to reduce the grade
of the particular offense was limited to its power to pronounce a misdemeanor sentence,
which would have the effect of accomplishing such a reduction from that time forward
(Pen. Code, § 17, subd. (b)(1)). In each instance, the reduction was dependent on a
determination by the official who, at the particular time, possessed knowledge of the
special facts of the individual case and therefore, could intelligently exercise the
legislatively granted discretion. The action taken by the superior court was one not based
on any knowledge of the individual case before it but, expressly, was one taken on the
basis of that court's disagreement with the legislative policy for the kind of offense
involved.3 The Clark court held that no such power existed. (Id. at p. 898.)
       In each of the aforementioned cases, with the exception of Clark,4 the felony count
was either tried or as in the Douglas case the defendant pleaded to the felony counts. In


3
        The trial judge in Clark had explained his reasons for changing the charge to a
misdemeanor as follows: " 'The court is unaware that this offense has ever been
ultimately disposed of as a felony, although the Code does make it an alternative felony-
misdemeanor. The Court is aware that the departments of this court are so jammed with
criminal cases that it is an undue and unreasonable imposition on the court and on the
judges of this court to entertain matters of this nature in the Superior Court. The law has
been amended to provide for the filing of these kinds of charges in the Municipal Court;
that is where they ultimately would be disposed of and that is where this case is now
being certified.' " (Clark, supra, 17 Cal.App.3d at p. 895.)
4
        In Clark, the felony count for defendant Tait should have been tried (Clark, supra,
17 Cal.App.3d at p. 899) and in the case of defendant Clark, she should have requested
that her case be transferred to the municipal court. (Id. at pp. 897-898.)
                                              7
contrast, in this case, the felony count was dismissed before trial and Scott was charged
by an "amended" complaint with only three misdemeanors. At this point, Scott stood
charged with misdemeanors and no felony counts. It is axiomatic that for all intents and
purposes this is a case in which Scott was not charged with a felony. Based on Brown,
Spreckels, Douglas and Clark, and a close reading of the Advisory Committee Comment
to rule 8.304, we are convinced that the "regardless of the outcome" language in rule
8.304 does not extend to cases wherein the felony count is dismissed entirely, because in
this situation there is no "prosecution."
       Scott has complained at length that the misdemeanor complaint "was a formality,
filed on the first day of trial, that did not change the essential nature of the case." "As
stated in Wright v. Rogers, 172 Cal.App.2d 349, 361: ' "It is well established that an
amendatory pleading supersedes the original one, which ceases to perform any function
as a pleading. . . ." (Meyer v. State Board of Equalization, 42 Cal.2d 376, 384-385.)' "
(People v. Mack (1961) 197 Cal.App.2d 574, 578.) Thus, when a pleading is amended,
the original pleading is thereby set aside and abandoned. (Ibid.)
       Furthermore, we cannot agree with Scott's contention that appellate jurisdiction
vested in this court when the original information was filed charging him with a felony.
It is well established that a timely notice of appeal vests jurisdiction in an appellate court.
(Adoption of Alexander S. (1988) 44 Cal.3d 857, 864.)
       The superior court recognized that this was a misdemeanor case and set the trial in
a misdemeanor department.5 Scott's trial counsel recognized that this was a misdemeanor
case and filed a misdemeanor notice of appeal (form CR-132), form CR-134—"Notice
Regarding Record of Oral Proceedings (Misdemeanor)," and form CR-133—"Request for
Court-Appointed Lawyer in Misdemeanor Appeal."

5
       We have taken judicial notice of the fact that Department 47 of the Santa Clara
County Superior Court, the department in which Scott was tried, is a limited jurisdiction
courtroom.
                                               8
       Finally, Scott argues that if the information had been dismissed, the first amended
misdemeanor complaint would have been barred because section 1387 provides that one
previous dismissal of a charge for the same offense will bar a new misdemeanor charge.
Scott asserts that the information alleged the same theft offense as the first amended
misdemeanor complaint. Accordingly, he contends that if the entire information was
dismissed the first amended complaint was barred. We reject Scott's argument.
       For purposes of section 1387, subdivision (a), the misdemeanor prosecution in this
case was not "for the same offense" as that charged in the prior information. In Burris v.
Superior Court (2005) 34 Cal.4th 1012, (Burris), the California Supreme Court suggested
that "[w]hen two crimes have the same elements, they are the same offense for purposes
of . . . section 1387." (Id. at pp. 1016-1017, fn. 3.) The information charged Scott with
"GRAND THEFT PERSON," one element of which is that the "money, labor or real or
personal property taken is of a value exceeding nine hundred and fifty dollars
($950) . . . ." (§ 487; See CALCRIM Nos. 1800 [theft] 1801 [degrees; defendant
committed grand theft if he or she stole property or services worth more than $950].)
Petty theft has no such requirement. Section 1387 only applies to successive
prosecutions for the same offense. (People v. Traylor (2009) 46 Cal.4th 1205, 1212
(Traylor).) Further, petty theft is a lesser and necessarily included offense of grand theft.
(Gomez v. Superior Court (1958) 50 Cal.2d 640, 643–647.) "[W]hen a prosecution for a
greater offense, having been dismissed, is followed by a subsequent prosecution for a
lesser included offense, the two prosecutions may not be 'for the same offense.' This is
because the offense charged in the [amended] complaint does not include all the elements
of the offense charged earlier, and thus does not involve the 'identical criminal act.' "
(Traylor, supra, 46 Cal.4th at pp. 1212-1213.)6

6
       The importance of Traylor is that it strictly construed section 1387's use of the
language "same offense." It rejected that "section 1387(a) should apply to all charges
arising from the same conduct or behavior of the defendant," finding that the statutory
                                              9
       Having determined that the effective pleading in this case charged Scott with only
three misdemeanors, the appeal is not properly before this court pursuant to California
Rules of Court, rule 8.304. Therefore, this matter must be transferred back to the
appellate division of the superior court for disposition.
                                         Disposition
       This case is hereby transferred to the appellate division of the Santa Clara County
Superior Court. (Gov. Code, § 68915.)


                                           ________________________________
                                           ELIA, J.


WE CONCUR:


______________________________
RUSHING, P. J.


______________________________
PREMO, J.




language "belies such a necessarily broad construction." (Traylor, supra, 46 Cal.4th at p.
1213, fn. 6.)
                                             10
Trial Court:                Santa Clara County Superior Court


Trial Judge:                Hon. Diane Ritchie


Attorney for Appellant:     Teresa Biagini


Attorneys for Respondent:   Kamala D. Harris,
                            Attorney General,
                            Dane R. Gillette,
                            Chief Assistant Attorney General,
                            Gerald A. Engler,
                            Sr. Assistant Attorney General,
                            Sharon R. Wooden and
                            Dorian Jung,
                            Deputy Attorneys General




People v. Scott

H037681




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