Filed 10/19/18




                            CERTIFIED FOR PUBLICATION


             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                  F075101
         Plaintiff and Appellant,
                                                        (Super. Ct. Nos. F16901499,
                 v.                                             F16903119)

CODY WADE HENSON,
                                                                OPINION
         Defendant and Respondent.



         APPEAL from an order of the Superior Court of Fresno County. W. Kent Hamlin,
Judge.
         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 Court of Appeal, for Defendant and
Respondent.
                                           -ooOoo-




                                    SEE DISSENTING OPINION
       Penal Code section 954 provides, in pertinent part: “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 if two or more accusatory
pleadings are filed in such cases in the same court, the court may order them to be
consolidated.”1 Section 949 provides, in part: “The first pleading on the part of the
people in the superior court in a felony case is the indictment, information, or the
complaint in any case certified to the superior court under Section 859a.”
       When a defendant is held to answer on charges brought in separate cases
following separate preliminary hearings, do the People need the court’s permission to file
a unitary information, covering the charges in both those cases, as their first pleading?
Reading the foregoing statutes together, we conclude that, where the charges meet the
requirements set out in section 954, the answer is no. In that situation, whether to file a
unitary information covering all charges, or a separate information for each case, is a
matter of prosecutorial discretion. If the defendant believes the inclusion of all charges in
a unitary information prejudices him or her, he or she may move for severance of counts.
       In this case, the defendant challenged the inclusion of all counts in a unitary
information by means of a motion to set aside the information pursuant to section 995.
The judge agreed the charges could not be joined without the court’s permission, and set
aside the information with respect to the charges that arose in one of the two cases
covered by the information. In so doing, the judge deliberately ignored half of the record
before him. He erred in his interpretation of the controlling law and in his ruling. The
People having appealed, we reverse and remand for further proceedings.




1      Further statutory references are to the Penal Code unless otherwise stated.


                                             2.
                               PROCEDURAL HISTORY
       On March 7, 2016, a complaint was filed in Fresno County Superior Court case
No. F16901499 (case 499), charging Cody Wade Henson (defendant) with unlawfully
driving or taking a vehicle after having suffered three prior felony theft convictions
involving vehicles (§ 666.5; Veh. Code, § 10851, subd. (a); count 1, a felony), receiving
stolen property, to wit, a motor vehicle, after having suffered three prior felony theft
convictions involving vehicles (§§ 496d, subd. (a), 666.5; count 2, a felony), resisting,
obstructing, or delaying a peace officer or emergency medical technician (§ 148,
subd. (a)(1); count 3, a misdemeanor), and possessing burglary tools (§ 466; count 4, a
misdemeanor). The offenses all were alleged to have occurred on March 4.2 Defendant
was further alleged to have served two prior prison terms. (§ 667.5, subd. (b).)
       Defendant was arraigned on the complaint on March 8. The public defender’s
office was appointed to represent defendant, who entered pleas of not guilty to all charges
and denied all special allegations. At some point, defendant was released from custody
after posting a surety bond. After several continuances, the preliminary hearing was set
for May 24.
       On May 19, a complaint was filed in Fresno County Superior Court case
No. F16903119 (case 119), charging defendant with unlawfully driving or taking a
vehicle after having suffered three prior felony theft convictions involving vehicles
(§ 666.5; Veh. Code, § 10851, subd. (a); counts 1 & 3, both felonies), receiving stolen
property, to wit, a motor vehicle, after having suffered three prior felony theft convictions
involving vehicles (§§ 496d, subd. (a), 666.5; counts 2 & 4, both felonies), and resisting,
obstructing, or delaying a peace officer or emergency medical technician (§ 148,
subd. (a)(1); count 5, a misdemeanor). The offenses all were alleged to have occurred on
May 17. Defendant was further alleged to have served two prior prison terms (§ 667.5,

2      Unless otherwise specified, all dates are from the year 2016.


                                              3.
subd. (b)), and to have committed the current offenses while released on bail in case 499
(§ 12022.1).
       Arraignment on the complaint originally was set for May 20. On that date, the
public defender’s office was appointed to represent defendant and, at defense request, the
arraignment was continued to May 24, so the matter could be heard with defendant’s
other cases. On May 24, a conflict was declared, the public defender’s office was
relieved, and conflict counsel was appointed for defendant. Defendant was then
arraigned, and entered pleas of not guilty to all charges and denied all special allegations.
       The preliminary hearings in both cases subsequently were continued multiple
times, primarily at defense request. The preliminary hearing in case 119 eventually took
place on November 16 before a magistrate. Defendant was held to answer, and
arraignment was set for December 1. The preliminary hearing in case 499 was initially
set for November 16, but was continued because of witness availability issues. That
hearing took place on November 22 before a magistrate. Defendant again was held to
answer, and arraignment was set for the same time and department as case 119.
       On November 29, the People attempted to file with the clerk’s office an
information bearing both case numbers, with case 119 designated “Lead.” The
information alleged most of the charges and enhancements that were contained in the
original complaints, with counts 1 through 4 consisting of the charges from case 499, and
counts 5 through 7 consisting of the charges from case 119. The pleading apparently was
rejected, as the file stamp bearing the date of November 29 was crossed out by hand and
initialed. The information was then filed on December 1. Handprinted above
“INFORMATION” was the word “CONSOLIDATED.”3

3      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. We will assume, for sake of discussion, that this representation is accurate.
We cannot, however, discern whether the signature of the deputy clerk who filed the

                                             4.
       Appearing on behalf of defendant on December 1, were conflict counsel in
case 119, and the public defender’s office in case 499.4 The deputy public defender
objected to consolidation of the felony cases into a single information and stated she
would be filing a severance motion. She also requested a one-week continuance to make
a conflict determination. Arraignment was continued for one week.
       At the continued hearing on December 8, conflict counsel objected to the People
having combined two cases, one in which conflict counsel represented defendant, and the
other in which defendant was represented by the public defender’s office. Counsel stated
she did not want to arraign defendant without lodging an objection to the cases being put
together. The arraignment judge asked if she was filing a demurrer or what she was

information is that of the arraignment judge’s court clerk/judicial assistant. Other than
that signature, the record before us contains no information concerning how the
information came to be filed or who wrote “CONSOLIDATED” on it. Nor, for that
matter, does the record contain information supporting defendant’s assertion the clerk’s
office initially refused to file the information because “[t]he face sheet and caption of the
document looked off . . . .”
        The dissent points to the superior court dockets for cases 119 and 499, and claims
they “reflect[] . . . 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.” (Dissent, p. 1, fn. 1, post.)
However, the record on appeal contains no docket entry in either case for November 29,
the date rejection allegedly occurred. The clerk’s minutes for December 1 simply show
arraignment was continued, at defense request, in both cases. “[O]ur review on a direct
appeal is limited to the appellate record. [Citations.]” (People v. Barnett (1998) 17
Cal.4th 1044, 1183.) Although the importance of those dockets to the determination of
this action is doubtful, we point out that, while we may take judicial notice under
Evidence Code sections 452 and 459 of any trial court records (dissent, p. 1, post), we
have not been asked to do so. To the extent our dissenting colleague purports to do so
unilaterally, the parties have not been afforded the procedural protections contained in
Evidence Code sections 455 and 459, subdivisions (c) and (d). (See Haworth v. Superior
Court (2010) 50 Cal.4th 372, 379, fn. 2; People v. Tobin (1990) 219 Cal.App.3d 634,
644, fn. 3 (dis. opn. of White, P.J.).)
4      It appears defendant also had two other cases pending, in one he was represented
by the public defender’s office and in the other by conflict counsel. Those cases are not
before us.


                                              5.
going to do. He noted there were only certain things she could do at that stage of the
proceedings. The deputy public defender stated that because of the way in which the
information had been filed, her office needed to “conflict off” the case. She explained
that the information now included a case in which her office had already declared a
conflict, thereby creating a conflict for the entire “new” case.
        Conflict counsel asked whether the arraignment judge was willing to hear her
objection to consolidation at that hearing. The People took the position that if defense
counsel wished to file a motion objecting to the single information being filed, the People
would agree to continue the arraignment to afford that opportunity, but an oral objection
was not legally appropriate. When conflict counsel pointed out that the People never
filed a motion to consolidate, the arraignment judge responded: “That’s correct but there
is a Penal Code Section and I’m not pretending to make a ruling here because frankly I
don’t know. There is a Penal Code Section that allows the People to file the pleadings
prior to arraignment without leave of court, is there not?” The judge agreed to hear the
motion that day if counsel so desired, but the matter ultimately was continued for another
week.
        At the continued hearing on December 15, conflict counsel cited California Rules
of Court, rule 3.350(a)(1)(C) for the proposition a notice of motion to consolidate must be
filed in each case sought to be consolidated.5 She stated she had also reviewed section
1009, permitting an information to be amended without leave of court, but noted an
accusation could not be amended so as to charge an offense not shown by the evidence
taken at the preliminary hearing. Counsel argued that because there were separate
preliminary hearings in separate cases, neither contained evidence demonstrating offenses
contained in the other.



5       All references to rules are to the California Rules of Court.


                                              6.
       The arraignment judge asked how, procedurally, counsel intended to get that issue
in front of the court at an arraignment hearing, in light of the fact section 1002 only
permitted a defendant to enter a demurrer or a plea. The judge stated he was “not
unsympathetic with the merits of this situation,” but he did not know procedurally how
the issue could be gotten in front of the court except by either entering a plea and filing a
motion to sever, or by demurring and arguing there was improper joinder under
section 954, which in effect was the same thing as a severance motion. Conflict counsel
asked the court not to accept the consolidated information as filed, because it was
improper. When she was unable to cite authority other than the Rules of Court, the
arraignment judge denied the motion to refuse to accept the filing of the information.
The public defender’s office then declared a conflict as to case 499, and conflict counsel
was appointed. Defendant was arraigned on the information, and the judge set a trial date
“[o]n case ending 119 and 499 that are filed together in one information . . . .”
       Conflict counsel subsequently filed a motion to dismiss, pursuant to section 995.
In pertinent part, she requested that the court set aside “the entire Information as filed” on
the ground the information was improperly consolidated after separate preliminary
hearings in separate cases. Counsel cited section 1009 and rule 3.350, and argued the
“consolidat[ion]” of both cases in one information, without moving the court for
permission to do so, was in “direct violation” of the statute and the rule. She further
argued there was no evidence shown to support counts 1 through 4 at the preliminary
hearing in case 119 and, alternatively, no evidence shown to support counts 5 through 7
at the preliminary hearing in case 499.
       The People opposed the motion. In pertinent part, they argued section 995 did not
grant a defendant the means by which to challenge an improperly consolidated
information. The People asserted the offenses charged were all of the same class of
crimes, and so met the requirements of section 954.



                                              7.
       The motion was heard on January 13, 2017. At the outset of the hearing, the
motions judge stated he had two separate case files, one for case 119 and the other for
case 499. He further stated he had “done a lot of research” on the topic presented by the
defense motion. He asked the prosecutor whether he had any authority for the
proposition the People could join two cases, by their own decision to consolidate, without
permission of the court. The judge stated he did not believe the law permitted a court to
treat two preliminary hearing transcripts as one, just because the People chose to treat
two cases as one, and he did not see why a section 995 motion could not be used to
address the issue. The prosecutor responded that the People did not seek to consolidate
two separate offenses, but rather filed, at the first available opportunity, a charging
document that alleged separate offenses as permitted by section 954. He argued the
defense had the opportunity to challenge that filing and did not do so, and they could not
raise the issue by means of a section 995 motion. The motions judge stated:

       “[W]hat I’m suggesting is not that I can . . . overrule another judge if a
       judge made a decision to consolidate the cases. What I’m suggesting is that
       the entire scheme of the code, and the entire process of criminal procedure
       is that this matter, having been filed as two cases in front of the Court,
       whether those two cases are joined is a question for the Court, and the D.A.
       can’t make that decision for the Court. The D.A. can file a request to
       consolidate the matters, and if that’s granted the Court can then look in the
       other file because it’s been consolidated, and then find the evidence
       supporting the charge. I looked through, with great care, the transcript of
       the proceeding in front of [the judge] at arraignment on the information,
       and [his] point was you can demurrer [sic] or you can enter a plea, and he’s
       correct about that. . . . [D]efense chose not to demurrer [sic]. I’m not sure
       there’s a basis for a demurrer, but whether there is or isn’t the question is
       not — [the arraignment judge] did not make an order consolidating the
       cases. While there are two minute orders that reflect that he did, there is no
       mention of it in the oral proceedings of the court, and as you know the oral
       proceedings control over the written proceedings. . . . [The D.A.] gave him
       an information that consolidated the cases without leave of Court, and the
       Judge accepted it for filing, which the clerk’s office should have done. But
       the Court, when it accepted those for filing, didn’t grant a motion for — to
       consolidate. The Court didn’t consolidate the two actions. The D.A. chose


                                              8.
       to do that on their own, and I’m not aware of any authority that says they
       can do that.”
       The prosecutor argued there was no motion to consolidate; rather, there was a
filing of a charging document “at the first inception of the proceeding of that first
criminal offense.” The motions judge responded that this was not a different proceeding;
there were two proceedings, each of which resulted in a holding order, which in turn gave
the People the ability to file an information in each proceeding. He continued:

                “Where do we draw the line on this? I mean, you’ve got counts that
       absolutely would be consolidated on a motion. I couldn’t imagine anything
       that would prevent a Court from granting that, but where do we draw the
       line and turn the issue of the Court’s control of its own procedures into just
       a matter where the D.A. gets to decide how it works? Because that’s
       exactly what you’ve done here. You’ve decided that the Court doesn’t need
       to entertain a motion, that defense doesn’t get a chance to oppose a motion,
       that you can just simply file a consolidated information and you’ve given
       me no authority for that proposition. I have plenty of authority as to why
       you can’t . . . . This question is not about whether these actions can
       properly be consolidated, it’s not really even about whether they were
       consolidated. It’s at this point about whether in the action, the lead case,
       the case under which this purported consolidated complaint is filed, is there
       any evidence in that action of the crimes charged in Counts 1 through . . .
       4. . . . And I don’t have that information in front of me because the only
       evidence that those crimes were committed is in some other case. And,
       yeah, you’ve got both case files, and, yeah, I can go find the preliminary
       hearing transcript, but they’re not in this case, and they are separate cases.
       They don’t just become one case because the D.A. says they’re one case.
       They become one case if a judge grants a motion to consolidate them.”
       The motions judge expounded that in case 499, a preliminary hearing was held,
and evidence was presented concerning the four counts alleged in that case. In case 119,
a preliminary hearing was held, and evidence was presented as to the charges arising in
that case. At the preliminary hearing in case 119, no evidence was presented concerning
the charges filed in case 499. The judge acknowledged there was “probably plenty of
evidence in that preliminary hearing transcript to support those charges,” but stated it was
a different case. The information before him was filed in case 119, and no evidence of



                                              9.
the charges in case 499 was presented to the magistrate who presided over the
preliminary hearing in case 119. The judge observed:

      “The People could have filed an information in each case, asked leave of
      the Court to consolidate, filed a motion on notice, as it’s required by the
      code, as it’s specified in the code. Defense could have opposed it. We
      have two different lawyers, later that wasn’t the case, but they could have
      come up with whatever argument they could make. They’re not properly
      joined. Well, sure they are. They are all the same kinds of charges. So
      they would have whatever argument they’d had, and you would have
      routinely gotten granted a consolidation order, and the two actions would
      have been consolidated. Then I could look in both preliminary hearing
      transcripts to find the evidence of all seven counts. But because you didn’t
      do that, and instead took it upon yourself to file in [case 119], seven
      charges, only two of which are supported by the evidence in that case, you
      now are facing a 995 that challenges the sufficiency of the evidence in
      those five counts, and there isn’t any cause you didn’t put them in the
      prelim, and you didn’t get the actions properly consolidated. It’s not a
      prosecutorial charging decision, it just isn’t. The D.A.’s Office may think it
      is, and you may have done this before and may think you can do it
      again . . . . But I can tell you this, it’s not a prosecutorial charging decision
      to take two separate criminal actions and join them into one. It just doesn’t
      work that way. This is a question about proper procedure, and the
      Judiciary’s control over the case once it’s been filed. . . . It’s your . . .
      decision as to what charges to file in one case, what charges to file in
      another case, but it is not purely a prosecutorial . . . charging decision, to
      then say, We’re gonna file all those in one case. You can’t do it without
      permission of the Court. That’s why we have motions to consolidate.
      That’s why there’s a procedure set out in the code. These are two separate
      actions initiated by the D.A., not one, and the purpose of the 995 is to
      review the sufficiency of the information on the basis of the record before
      the Court. And the record before the Court in [case 119] says you got two
      good charges, and you’ve got five for which there’s no evidence. And now
      because you chose to go this path, and file a consolidated information
      instead of filing two separate informations and seeking to consolidate them,
      you now have failed to timely file an information in that case, and those
      counts are gonna be dismissed, and it’s a dismissal.”
      The prosecutor argued section 954 permitted separate offenses to be filed in a
single charging document. The motions judge countered that the statute said the court
could order consolidation when two or more accusatory pleadings were filed, which was


                                            10.
the situation here. He stated: “To make them one you need consent of the Court, and you
don’t just get a free swing at it just cause we’re at the point where we’re now arraigning
on an information. It doesn’t wipe away [section] 954. It doesn’t wipe away the Court’s
control over those two actions. There were two actions, and you don’t get to make them
one. The Court can make them one on proper noticed motion after the defense has had an
opportunity to be heard, but you don’t just shortcut the defendant by choosing to say,
These should be consolidated. That’s a question for the Court, not the D.A.” The judge
further stated that he was not sure a demurrer would lie, but in any event, it was not the
defense’s burden to sever cases that were improperly joined or consolidated into one
case. Rather, it was the People’s job to consolidate the cases by motion, “not by your
own decision and just running rough shot [sic] over the Court’s procedures.”
       The motions judge afforded counsel additional time for further research, and
continued the hearing to January 18, 2017. On that date, the prosecutor took the position
the arraignment judge had treated the defense’s opposition as a motion to sever and
denied that motion, so the matter was not properly reviewable by way of a section 995
motion. The prosecutor also argued the motions judge could not ignore part of the
record, since both case numbers were on the information, meaning informations
effectively were filed in both cases. He asserted the appropriate remedy for the defense
was a severance motion, not an examination in a section 995 proceeding of a partial
record.
       The motions judge reiterated that he was not overruling any discretionary decision
made by the arraignment judge, as the transcripts of the arraignment proceeding showed
that judge did not order consolidation of the two actions. The motions judge further
reiterated the People never presented a consolidation motion to any judge, and
consolidation was a judicial function and not a prosecutorial charging decision. The
judge observed that a court could not, in a section 995 proceeding, go outside the record
in one case to decide there was evidence in another case that supported the charges. He

                                            11.
concluded that he had an information before him (based on designation of case 119 as the
lead case) as to which only counts 5, 6, and 7 were supported by the evidence in the
preliminary hearing transcript. Counts 1 through 4 had no factual support in that
transcript and so he ordered them dismissed.
        The People appealed. (§ 1238, subd. (a)(1); People v. Alice (2007) 41 Cal.4th 668,
680.)
                                      DISCUSSION
        The question before us is whether court permission is required for the People to
file a single information covering the charges brought in separate felony complaints and
as to which defendant was held to answer following separate preliminary hearings. The
unitary information was filed and accepted by the arraignment judge, and defendant was
arraigned thereon. He did not demur or subsequently move for severance. Instead, he
moved to set aside the information pursuant to section 995.
        A motion pursuant to section 995 is not the proper means by which to seek redress
for asserted improper joinder. That section permits an information to be set aside if,
before the filing thereof, the defendant was not legally committed by a magistrate; or if
the defendant was committed without reasonable or probable cause. (§ 995, subd. (a)(2).)
Although defendant named both grounds in his written motion, it is clear that the manner
in which charges are alleged in an information cannot affect the legality of the
commitment by the magistrate, since that commitment precedes the creation of an
information. Accordingly, defendant necessarily relied on the argument he was
committed without reasonable or probable cause either with respect to the counts in case
119 or with respect to the counts in case 499. However, “misjoinder is not one of the
grounds upon which the information may be attacked under section 995 of the Penal
Code. That objection to the information may be only raised by demurrer (Pen. Code,




                                            12.
§ 1004, subd. 3).” (People v. Cummings (1959) 173 Cal.App.2d 721, 730.) Failure to
demur constitutes waiver. (§ 1012.)6
       It is true that a section 995 motion is the proper vehicle by which to attack an
information in which one or more counts is not supported by at least some evidence.
(See People v. Superior Court (Jurado) (1992) 4 Cal.App.4th 1217, 1226.) It is also the
appropriate means of asserting the information improperly contains charges not set out in
the order of commitment, where those offenses were not shown by the evidence at the
preliminary hearing or did not arise out of the transaction upon which the commitment
was based. (See People v. Graff (2009) 170 Cal.App.4th 345, 360-361.) This case could
only be maneuvered into that posture, however, by the motions judge choosing to ignore
essentially half of the record before him. His doing so constituted an abuse of discretion,
particularly in the absence of any authority therefor.7

6       There is some uncertainty whether the purported misjoinder in this case could
have been reached by way of demurrer. Subdivision 3 of section 1004 permits an
accused to demur when it appears upon the face of the accusatory pleading “[t]hat more
than one offense is charged, except as provided in Section 954.” A cogent argument can
be made that if section 954 required the prosecutor to obtain court permission to file a
single information covering two cases, and the prosecutor failed to obtain that
permission, it would appear on the face of the information “[t]hat more than one offense
[was] charged, except as provided in Section 954.” (§ 1004, subd. 3.) Assuming such
was not the case, however, defendant still could have availed himself of a motion to
sever. (People v. Kemp (1961) 55 Cal.2d 458, 474.)
7     Discretion is abused when “the ruling in question ‘falls outside the bounds of
reason’ under the applicable law and the relevant facts [citations].” (People v. Williams
(1998) 17 Cal.4th 148, 162, italics added.)
        We do not suggest the motions judge improperly ignored, overlooked, or
overruled any order made by the arraignment judge. (See People v. Ellison (2003) 111
Cal.App.4th 1360, 1366.) Although the clerk’s minutes of the December 15 hearing
reflect that the arraignment judge ordered case 199 “consolidated” with case 499, the
reporter’s transcript shows the judge simply denied the defense motion to refuse to accept
the filing of the information and, following defendant’s arraignment, proceeded to set a
trial date for cases 119 and 499 “that are filed together in one information.” It is clear the
arraignment judge did not grant consolidation, but rather merely accepted what had
already been administratively deemed a “CONSOLIDATED” information. (See People

                                             13.
         Additionally, the motions judge’s reasoning behind his granting of the section 995
motion was error.8
         The primary question presented — whether the People are required to obtain court
permission before filing a unitary information as their first pleading in superior court —
is one of statutory interpretation, which we consider de novo. (People v. Prunty (2015)
62 Cal.4th 59, 71; People v. Cunningham (2001) 25 Cal.4th 926, 984; People v. Alvarez
(1996) 14 Cal.4th 155, 188.) Likewise, to the extent the motions judge was interpreting
the meaning of section 954, we independently review his determination, and we reject his
interpretation of that statute’s requirements. (See People v. Perez (2018) 4 Cal.5th 1055,
1067.)
         Section 954 has two parts that concern us. The first provides: “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

v. Smith (1983) 33 Cal.3d 596, 599; People v. Irvin (1991) 230 Cal.App.3d 180, 192,
fn. 9.)
        The fact the clerk/judicial assistant referred to the cases as “consolidated” for
purposes of her administrative duties (which, we assume, include ensuring court records
are accurate and complete with respect to all court cases, whatever their ultimate
disposition) does not establish them as having been consolidated within the meaning of
the applicable statutes. It also does not control whether the court’s permission to
consolidate, in the legal sense, is required. That said, nothing in this opinion is intended
to interfere with the clerk’s performance of his or her administrative duties, or how he or
she designates a unitary information in order to carry out those duties. Nor should it be
read as suggesting it is the function or responsibility of the clerk/judicial assistant to
determine whether a unitary information, covering charges in two cases, is proper. “The
presentation of an information by the district attorney for filing, and the reception of this
information and the placing of its file-mark thereon by the clerk of the court, are all
purely ministerial acts. [Citations.]” (People v. Helm (1907) 152 Cal. 532, 548,
disapproved on another ground in People v. Edwards (1912) 163 Cal. 752, 756.)
8      Because we reach the substantive issue on its merits, we need not address
defendant’s claim that if defense counsel somehow forfeited or waived the matter by
framing the issue as a section 995 motion or failing to demur, defendant was denied the
effective assistance of counsel.


                                             14.
of the same class of crimes or offenses, under separate counts . . . .” Taking only this
portion of the statute into account, joinder here “was proper because the counts were all
of the same class. ‘Offenses of the same class are offenses which possess common
characteristics or attributes.’ [Citations.]” (People v. Landry (2016) 2 Cal.5th 52, 76.)
Defendant does not appear to dispute this.
       The second pertinent portion of section 954 is the second half of the sentence
quoted ante. It provides: “. . . and 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.)
       Prior to 1998, the judicial power of California was vested in the Supreme Court,
Courts of Appeal, superior courts, and municipal courts.9 (Cal. Const., art. VI, former
§ 1; see § 691, former subd. (a) [defining “inferior courts” as including municipal courts
and justices’ courts].) It is logical to conclude that, at such time, the separation of courts
was such that section 954 meant judicial permission was required to consolidate two or
more accusatory pleadings filed in municipal court, or two or more accusatory pleadings
filed in superior court. Permission would not have been required to do what the People
did in the present case: file a single information as their first pleading in superior court
(§ 949), covering charges as to which separate complaints were filed, and the defendant
was separately held to answer, in municipal court. This is so because superior court and
municipal court were not the same court.
       In 1998, municipal and superior courts were consolidated by constitutional
amendment, enacted by initiative measure (Prop. 220) that was approved June 2, 1998,
and went into effect the next day. (See Cal. Const., art. II, § 10, subd. (a).)
Proposition 220 “ ‘had the effect of empowering each county to abolish the municipal
court in that county by merging its judges and resources into the superior court.’


9    Justice courts were eliminated by initiative measure (Prop. 191) approved
November 8, 1994, and operative January 1, 1995.


                                              15.
[Citation.]” (People v. Richardson (2007) 156 Cal.App.4th 574, 586 (Richardson); see
Voter Information Guide, Primary Elec. (June 2, 1998) analysis of Prop. 220 by Legis.
Analyst, at <http://vigarchive.sos.ca.gov/1998/primary/propositions/220analysis.htm> [as
of Oct. 19, 2018].) Article VI, section 1 of the California Constitution now provides that
the judicial power of the state is vested in the Supreme Court, Courts of Appeal, and
superior courts, while section 4 of article VI provides that “[i]n each county there is a
superior court of one or more judges.”
       In response to the passage of Proposition 220, the Legislature enacted numerous
statutory changes to accommodate unification. (Stats. 1998, ch. 931; see, e.g., §§ 682,
691, 737, 806, 949.) Section 954 was unaffected, however, and has not been amended
since 1951. (See Historical and Statutory Notes, 50 pt. 3 West’s Ann. Pen. Code (2008
ed.) foll. § 954, p. 163.) We must determine whether court unification resulted in a
change in meaning as to section 954, despite the absence of an explicit amendment.
       In interpreting a statute, “ ‘our fundamental task . . . is to determine the
Legislature’s intent so as to effectuate the law’s purpose.’ [Citation.] ‘We begin with the
plain language of the statute, affording the words of the provision their ordinary and
usual meaning and viewing them in their statutory context, because the language
employed in the Legislature’s enactment generally is the most reliable indicator of
legislative intent.’ [Citations.]” (People v. Cornett (2012) 53 Cal.4th 1261, 1265.) “To
that end, we generally must ‘accord[] significance, if possible, to every word, phrase and
sentence in pursuance of the legislative purpose,’ and . . . ‘[a] construction making some
words surplusage is to be avoided.’ [Citation.] [¶] But ‘[t]he words of the statute must
be construed in context, keeping in mind the statutory purpose, and statutes or statutory
sections relating to the same subject must be harmonized, both internally and with each
other, to the extent possible.’ [Citation.]” (People v. Valencia (2017) 3 Cal.5th 347, 357-
358; see People v. Rizo (2000) 22 Cal.4th 681, 685 [same principles apply to
interpretation of voter initiative].)

                                              16.
       The plain meaning controls if the statutory language is unambiguous. (People v.
Cornett, supra, 53 Cal.4th at p. 1265.) Language that appears unambiguous on its face
may, however, contain a latent ambiguity. (People v. Garrett (2001) 92 Cal.App.4th
1417, 1422.) Where the statutory language reasonably may be given more than one
interpretation, we may consider various extrinsic aids, including the purpose of the
statute, the evils to be remedied, the legislative history, public policy, the statutory
scheme of which the statute is a part, and the consequences that will flow from a
particular interpretation. (People v. Valencia, supra, 3 Cal.5th at p. 358; People v.
Cornett, supra, 53 Cal.4th at p. 1265.) Ambiguities are not to be interpreted in the
defendant’s favor where such an interpretation would provide an absurd result or a result
that is inconsistent with the apparent legislative intent. (People v. Lamb (1999) 76
Cal.App.4th 664, 678.) The enacting body is presumed to have been aware of existing
law at the time of an enactment (In re Lance W. (1985) 37 Cal.3d 873, 890, fn. 11; Juan
G. v. Superior Court (2012) 209 Cal.App.4th 1480, 1494), and repeal by implication is
disfavored (Juan G., supra, at p. 1494).
       Court unification has given rise to an ambiguity in section 954: Does the phrase
“in the same court” mean in the single, unified superior court, or does the phrase retain its
original, preunification meaning? If the former, then the People were required to obtain a
court order allowing consolidation of cases 119 and 499. If the latter, the unitary
information was proper.
       We conclude the phrase retains its preunification meaning. To construe it
otherwise would be to render the phrase surplusage, make section 949 virtually
meaningless, and conflict with other statutes related to pleadings and pretrial
proceedings.
       “Felonies shall be prosecuted as provided by law, either by indictment or, after
examination and commitment by a magistrate, by information.” (Cal. Const., art. I, § 14.)
“An information is an accusatory pleading charging a felony, subscribed by the district

                                              17.
attorney, and filed in superior court. [Citations.] Before the prosecution may file an
information in superior court charging a felony, ‘there must be a preliminary examination
of the case against the defendant and an order holding him to answer . . . .’ [Citation.]”
(People v. Martinez (2000) 22 Cal.4th 750, 758.) “The principal purpose of the
information is to notify the accused of the charges he or she is to meet at trial.
[Citation.]” (People v. Maldonado (2009) 172 Cal.App.4th 89, 94.)
       “Prior to trial court unification, ‘felony proceedings commenced in the municipal
court with the filing of a complaint and the holding of a preliminary examination before
the magistrate. [Citations.] If the magistrate concluded there was sufficient evidence to
hold the defendant to answer, the prosecution filed an information in the superior court
within 15 days, charging [the] defendant with the felony offense. [Citations.] After court
unification, “the proceedings in the early stages of a felony prosecution that formerly
were held in municipal court now are held in superior court, but the basic procedural
steps — the filing of a complaint before a magistrate, the holding of a preliminary
examination before a magistrate, and the filing of an information and arraignment on the
information before a superior court judge — remain the same.” [Citation.]’ [Citation.]”
(People v. Maldonado, supra, 172 Cal.App.4th at pp. 94-95, fn. omitted; accord, People
v. Crayton (2002) 28 Cal.4th 346, 359-360; People v. Dominguez (2008) 166 Cal.App.4th
858, 865.)
       The Legislature’s revision of various statutes to accommodate court unification
was “intended generally to preserve existing procedures for criminal cases . . . .” (Cal.
Law Revision Com. com., 50 pt. 1 West’s Ann. Pen. Code (2008 ed.) foll. § 691, p. 132.)
It would be illogical for the Legislature to intend to preserve existing procedures by
revising statutes to accommodate unification on the one hand, while at the same time
intending to change existing procedures by not revising section 954 on the other hand.
       The People cite us to Richardson, supra, 156 Cal.App.4th 574, which addressed
the question whether a defendant who pled guilty before a magistrate, after the magistrate

                                             18.
denied his or her suppression motion at the preliminary hearing, and whose case was then
certified to the superior court for pronouncement of judgment pursuant to section 859a,
could thereafter seek appellate review of the magistrate’s ruling on the search and seizure
issue. (Richardson, supra, at pp. 580-581.) Prior to court unification, the California
Supreme Court held in People v. Lilienthal (1978) 22 Cal.3d 891, 896-897 (Lilienthal),
that where a defendant moves to suppress evidence at the preliminary hearing, he or she
must again raise the issue of the validity of the search in superior court in order to
preserve the issue for appeal. In People v. Garrido (2005) 127 Cal.App.4th 359, 364, the
court held unification did not abrogate this rule, “because the California Constitution,
article VI, section 23, subdivision (c), which created the unified court system, specifically
provides for superior court review of preliminary hearing suppression motions.
[Citation.] The rationale for continuing to apply Lilienthal after unification is based on
the distinct roles assigned to the magistrate and the superior court. [Citation.]”10 The
Richardson court agreed with Garrido. (Richardson, supra, 156 Cal.App.4th at p. 581.)
It concluded: “[T]he consensus is that the Lilienthal rule continues to apply even in the
wake of trial court unification because that rule never rested on the distinction between
the municipal court and the superior court; rather, it rests on the distinction between
magistrates and superior court judges — a distinction that remains valid even following
unification.” (Id. at p. 589.)
       Richardson is not particularly helpful, because interpretation of section 954 does
not rest on the distinction between magistrates and superior court judges. We find

10     California Constitution, article VI, former section 23, subdivision (c) stated:
“Except as provided by statute to the contrary, in any county in which the superior and
municipal courts become unified, the following shall occur automatically in each
preexisting superior and municipal court: [¶] . . . [¶] (7) Penal Code procedures that
necessitate superior court review of, or action based on, a ruling or order by a municipal
court judge shall be performed by a superior court judge other than the judge who
originally made the ruling or order.” This section was repealed, by its own terms,
effective January 1, 2007. (Cal. Const., art. VI, former § 23, subd. (d).)


                                             19.
Lempert v. Superior Court (2003) 112 Cal.App.4th 1161 (Lempert) to be more
instructive.
       In Lempert, the defendant was charged by felony complaint and retained counsel
to represent him through the preliminary hearing, but not for trial. The defendant was
held to answer. At arraignment on the information, the attorney advised the court that the
matter should be referred to the public defender’s office. The court refused to allow the
attorney to withdraw because the attorney had previously made a “ ‘general
appearance,’ ” and the court required him to file a formal motion to withdraw. After
counsel filed the motion, it was denied. The attorney then sought writ review of the
superior court’s order denying the motion to withdraw. (Lempert, supra, 112
Cal.App.4th at pp. 1164-1165.)
       The appellate court issued a peremptory writ. It concluded the superior court erred
by requiring a formal motion to withdraw at the particular stage of the proceedings, and it
abused its discretion by denying the motion. (Lempert, supra, 112 Cal.App.4th at
p. 1165.) The Court of Appeal explained:

               “A felony prosecution that is commenced by the filing of a
       complaint has two distinct pretrial phases. In the first phase, formerly
       conducted in the municipal court, the prosecution commences with the
       filing of the felony complaint. (§ 806.) The defendant is brought before a
       magistrate and is informed of the right to counsel. (§ 859.) If the
       defendant desires counsel and is unable to employ counsel, counsel is
       appointed. (Ibid.) The defendant then appears before the magistrate for
       arraignment, and, if the defendant pleads not guilty, the magistrate sets the
       case for a preliminary examination. (§ 859b.) If the magistrate finds
       sufficient cause to believe the defendant is guilty, then the defendant is held
       to answer, and the district attorney files an information in the superior
       court. (§§ 872, 739.)

               “The second pretrial phase begins with the filing of the information
       in the superior court. The information is considered the first pleading filed
       by the People in a felony case in the superior court. (§ 949.) After the
       filing of the information, the defendant is arraigned on the information
       before a superior court judge. (§ 976.) In the interim, counsel who


                                             20.
       represented the defendant at the preliminary examination continues to
       represent the defendant ‘until the date set for arraignment on the
       information unless relieved by the court upon the substitution of other
       counsel or for cause.’ (§ 987.1[.]) If the defendant appears for arraignment
       on the information without counsel, the defendant is informed of the right
       to counsel. (§ 987.) If the defendant desires counsel and is unable to
       employ counsel, the court must appoint counsel to represent the defendant.
       (Ibid.)

               “Notwithstanding the court’s comment ‘we now have only one
       court,’ under the statutory scheme just laid out, that single court has two
       divisions corresponding to the former municipal and superior courts. The
       voluntary unification of the municipal and superior courts was not intended
       to fundamentally alter preexisting criminal procedure. Rather, the
       objective of the statutory revisions implementing trial court unification was
       ‘to preserve existing rights and procedures despite unification, with no
       disparity of treatment between a party appearing in municipal court and a
       similarly situated party appearing in superior court as a result of unification
       of the municipal and superior courts in a county.’ [Citation.] In order to
       distinguish between criminal causes that were within the original trial
       jurisdiction of superior and municipal courts, the criminal procedure
       statutes were revised ‘to accommodate the possibility of unification by
       replacing references to matters within the original jurisdiction of the
       superior court with references to felonies, and by replacing references to
       matters within the original jurisdiction of the municipal court with
       references to misdemeanors and infractions.’ [Citation.] Although the
       statutory references have changed, the historical division within the trial
       court remains.” (Lempert, supra, 112 Cal.App.4th at pp. 1168-1169, italics
       added, fns. omitted.)
       Because the historical division of municipal and superior courts remains the same
postunification as it was preunification (at least insofar as criminal procedure is
concerned), it stands to reason that 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, it is not required to incorporate two
complaints into a single information where that information is the People’s first pleading



                                             21.
at the superior court stage of proceedings.11 Any other interpretation, based on the
existence of a single court following unification, would read “in the same court” out of
the statute as being mere surplusage and unnecessary. Additionally, such a literal reading
of section 954 would afford judges the discretion to consolidate charges in a complaint
with charges in an information, since both documents would be accusatory pleadings
filed in the same court. Such a procedure would directly conflict with statutes such as
section 995 (requiring the defendant to be legally committed by a magistrate with
reasonable or probable cause) and section 1009 (requiring the charged offense to be
shown by evidence taken at a preliminary examination).12
       This conclusion by no means nullifies section 954, as defendant asserted at oral
argument. Section 739 requires an information to be filed within 15 days after a
defendant is committed (held to answer) by a magistrate following a preliminary hearing.
(See § 872.) Where separate complaints are filed, separate preliminary hearings are held,
and separate commitment orders are made sufficiently far apart in time that section 739’s
requirement cannot be met, as to all charges, by the filing of a unitary information,


11     Reliance on rule 3.350, as defendant did in the trial court, is unavailing. Rule
3.350 is contained in title 3 of the California Rules of Court. Unless otherwise provided
by a statute or rule in the Rules of Court, those rules apply only to civil cases. (Rule
3.10.) We have been unable to find any authority for the proposition rule 3.350 applies to
criminal cases, and title 4 of the California Rules of Court — which does apply to
criminal cases (rule 4.2) — contains no corresponding provision.
12     We reject the dissent’s assertion that under the unambiguous language and plain
meaning of section 954, consolidation is the province solely of the court. (Dissent, p. 19,
post.) We fail to see how the language or “plain meaning” of section 954 requires court
permission for consolidation of cases under the procedural posture presented here —
where two or more accusatory pleadings have not been filed in the same court in the
cases at issue — when the language of the statute neither expressly states nor implies
such a requirement. The cases cited by the dissent for the proposition section 954
contemplates consolidation only after informations have been filed and cases transferred
to superior court and only by court order (dissent, p. 19, post) are not on point
procedurally and so do not persuade us otherwise.


                                            22.
multiple informations will be filed. If the People desire to consolidate them, they will
need to seek the court’s permission to do so, pursuant to section 954. (See, e.g., Belton v.
Superior Court (1993) 19 Cal.App.4th 1279, 1283.) In the present case, defendant was
held to answer on both complaints sufficiently close in time that the People were able to
file a unitary information covering both cases without violating section 739.13

13     The dissent chides us for “diverg[ing] sharply from” and going beyond the
People’s arguments. (Dissent, p. 10, post.) The interpretation of statutes is a question of
law as to which we exercise our independent judgment. (Association of California Ins.
Companies v. Jones (2017) 2 Cal.5th 376, 389-390.) Just as we are not bound by the
motions judge’s statutory interpretation, neither are we bound by the pronouncements or
views of the parties on the subject.
       We reject any suggestion, whether made by the People or by the dissent, that
section 739 has preeminence over section 954. As we previously have observed, we are
required to harmonize statutes to the extent possible. (People v. Valencia, supra, 3
Cal.5th at p. 357.) In our view, sections 739 and 954 can reasonably be harmonized.
        Section 739 reads: “When a defendant has been examined and committed . . . , it
shall be the duty of the district attorney . . . to file in the superior court . . . 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. . . .” (Italics added.) With respect to the Legislature’s grammatical choices,
“[u]se of the indefinite article[] . . . ‘an’ signals a general reference, while use of the
definite article ‘the’ . . . refers to a specific . . . thing. [Citation.]” (Pineda v. Bank of
America, N.A. (2010) 50 Cal.4th 1389, 1396-1397.) We view the italicized portion of
section 739 as supporting the inference the Legislature was referring to informations in a
broad sense (assuming valid holding orders). The phrase “an information” contains no
inference the Legislature was referring to a specific single information limited to a
specific preliminary hearing and holding order — that is, was requiring a one-to-one
correlation between the information and a particular preliminary hearing and related
holding order — and section 739 contains no words of exclusivity.
       The dissent points to section 739’s use of the word “the” to qualify “commitment,”
“order of commitment,” and “magistrate.” (Dissent, p. 15, post.) While “the” is a
specific rather than a general reference, this does not change our conclusion, since, when
words are used in the Penal Code, “the singular number includes the plural, and the plural
the singular . . . .” (§ 7.)
       The dissent appears perplexed concerning how it can be determined, under our
interpretation of section 739, when the 15-day window for filing a unitary information

                                                23.
       Nor does our reading of section 954 result in unfairness to defendant, as he claims.
“The law favors the joinder of counts because such a course of action promotes
efficiency. [Citation.]” (People v. Merriman (2014) 60 Cal.4th 1, 37.) If defendant
believed he was prejudiced by the fact all counts were contained in a single information,
he could have moved to sever counts. “[A] trial court has discretion to order that
properly joined charges be tried separately. [Citations.]” (Ibid.) In exercising that
discretion, “the court weighs ‘the potential prejudice of joinder against the state’s strong
interest in the efficiency of a joint trial. [Citation.]’ ” (Ibid.) That the burden on a
severance motion rests on the defendant, while the burden on a consolidation motion rests
with the People, does not result in unfairness to either side.
       In granting a portion of the section 995 motion because of what he perceived as a
violation of statutory procedure, the motions judge relied in part on the court’s inherent
authority and control over its own procedures. Defendant now argues he did so properly.
We disagree.
       Article III, section 3 of the California Constitution provides: “The powers of state
government are legislative, executive, and judicial. Persons charged with the exercise of
one power may not exercise either of the others except as permitted by this Constitution.”
“It is well settled that the prosecuting authorities, exercising executive functions,
ordinarily have the sole discretion to determine whom to charge with public offenses and

opens and closes, and how the timeliness of such an information can be assessed.
(Dissent, p. 16, post.) Clearly, to comport with section 739, the 15-day time limit must
be met as to all charges contained in the unitary information, whether those offenses were
named in orders of commitment or were shown by evidence at preliminary hearings.
Section 739 precludes the district attorney from taking longer than 15 days with respect
to any case incorporated in the unified information, but does not preclude the district
attorney from acting in less than 15 days.
        We agree with the dissent that 15 days is a relatively short window. We disagree
that this suggests the Legislature intended a separate information to be filed in each case.
(Dissent, pp. 15-16, post.) What it does suggest is that because of the short timeframe, the
filing of a separate information in each case will be the more common procedure.


                                              24.
what charges to bring. [Citations.]” (People v. Birks (1998) 19 Cal.4th 108, 134; see
United States v. Batchelder (1979) 442 U.S. 114, 124.) “Judges must be as vigilant to
preserve from judicial encroachment those powers constitutionally committed to the
executive as they are to preserve their own constitutional powers from infringement by
the coordinate branches of government.” (People v. Superior Court (Greer) (1977) 19
Cal.3d 255, 262 (Greer), superseded by statute on another ground as stated in People v.
Conner (1983) 34 Cal.3d 141, 147.) Thus, courts generally may not review, for abuse of
prosecutorial discretion, a prosecutor’s decision as to the type and number of offenses to
charge. (See People v. Birks, supra, 19 Cal.4th at p. 134; People v. Cortes (1999) 71
Cal.App.4th 62, 79.)
       It is true the California Supreme Court has said that “ ‘[w]hen the decision to
prosecute has been made, the process which leads to acquittal or sentencing is
fundamentally judicial in nature.’ [Citations.]” (Greer, supra, 19 Cal.3d at p. 263.) That
court has also said that “ ‘when the jurisdiction of a court has been properly invoked by
the filing of a criminal charge, the disposition of that charge becomes a judicial
responsibility.’ . . . Thereupon the discretion of the executive — as that of any party to
the proceeding — becomes subject to the supervision of the trial court.” (Id. at p. 265,
citation omitted.) Such pronouncements, however, generally concerned “only the
established judicial power to dispose of charges and sentencing allegations the
prosecution has chosen to submit.” (People v. Birks, supra, 19 Cal.4th at p. 135.)
Nevertheless, we will assume, for the sake of our analysis, that once a prosecutor has
decided to prosecute an individual on specific charges, judicial supervision over the form
of pleading in which those charges are brought does not run afoul of the doctrine of
separation of powers.
       “ ‘All courts have inherent powers which enable them to carry out their duties and
ensure the orderly administration of justice. The inherent powers of courts are derived
from article VI, section 1 of the California Constitution and are not dependent on statute.

                                            25.
[Citations.] These powers entitle courts to “ ‘. . . adopt any suitable method of practice,
both in ordinary actions and special proceedings, if the procedure is not specified by
statute or by rules adopted by the Judicial Council.’ [Citation.]” [Citation.] Thus, a trial
court has the inherent authority to create a new form of procedure in a particular case,
where justice demands it. [Citations.] “ ‘The . . . power arises from necessity where, in
the absence of any previously established procedural rule, rights would be lost or the
court would be unable to function.’ [Citation.]” [Citation.]’ ” (Swarthout v. Superior
Court (2012) 208 Cal.App.4th 701, 708-709, italics added.)
       A court is authorized, however, only to act within the bounds of the law. It does
not have inherent authority to prohibit what the law permits, based on a misunderstanding
of the law or its own view as to what the law should be.
       “[J]oint trial has long been prescribed — and broadly allowed — by the
Legislature’s enactment of section 954. The purpose underlying this statute is clear:
joint trial ‘ordinarily avoids the increased expenditure of funds and judicial resources
which may result if the charges were to be tried in two or more separate trials.’
[Citation.]” (People v. Soper (2009) 45 Cal.4th 759, 771-772.) To this end, the
California Constitution “shall not be construed by the courts to prohibit the joining of
criminal cases as prescribed by the Legislature or by the people through the initiative
process.” (Cal. Const., art. I, § 30, subd. (a).) As we have explained, section 954
permitted the People to file, as their first pleading in superior court, a unitary information
containing charges alleged, and as to which defendant was held to answer, in separate
cases. This being the case, the motions judge possessed no authority — inherent or
otherwise — to partially dismiss those charges based on a misperception of the law.14

14     People v. Silva (1965) 236 Cal.App.2d 453 does not assist defendant or the motion
judge’s position. In that case, the prosecutor’s motion to consolidate charges in two
separate cases was denied. The prosecutor then moved to dismiss the two separate
informations. That motion was granted, after which the defendant immediately was
rearrested on a two-count complaint that contained the identical charges previously set

                                             26.
       To summarize, where joinder of charges is proper under section 954, that statute
permits the People to file, as their first pleading in superior court (§ 949), a unitary
information covering charges that were the subject of complaints, preliminary hearings,
and commitment orders in separate cases. The motions judge erred by ruling otherwise.
                                       DISPOSITION
       The order granting the motion to set aside counts 1 through 4 of the information is
reversed. The matter is remanded to the superior court for further proceedings.



                                                                   _____________________
                                                                      DETJEN, Acting P.J.
I CONCUR:


 _____________________
 FRANSON, J.




forth in the two separate informations. (Id. at pp. 454-455.) The appellate court stated:
“[A]lthough we recognize the validity of the dismissals of the earlier informations, this is
not to say that we sanction their use for the purpose of evading a prior ruling of the court
or that we find the courts without remedies to correct such an abuse of process.” (Id. at
p. 456, italics added.) The court found an order to sever, pursuant to section 954, to be
“[a]n appropriate remedy to prevent the prosecutor from profiting by this manipulation of
process . . . .” (People v. Silva, supra, at p. 456.)
         In the present case, the prosecutor evaded no ruling of any court. That he may
have gotten the unitary information filed by taking it to a second clerk/judicial assistant
after it was refused by the first clerk, shows no manipulation: The original clerk to whom
the information was presented should have accepted it for filing, as the motions judge
himself recognized.
        The dissent makes much of the confusion that it says arose as a result of the filing
of a unified information, and it conjures up ominous consequences it speculates may
result from our holding. In our view, the dissent overstates both, as did defendant in his
briefing in this court and at oral argument.


                                              27.
SMITH, J., Dissenting.
       I respectfully dissent from the majority opinion and would affirm the trial court.
       This appeal arises from an unusual situation. The District Attorney of Fresno
County (District Attorney) filed in the trial court an information encompassing counts
from two criminal actions independently initiated against defendant Cody Wade Henson
(People v. Henson (Super. Ct. Fresno County, 2017, No. F16903119); People v. Henson
(Super. Ct. Fresno County, 2016, No. F16901499)). Each case proceeded separately to
preliminary examination and a separate commitment order was issued in each.
Thereafter, the District Attorney alleged charges from both cases in a single information
(a so-called unified or unitary information): counts 1-4 were drawn from the
commitment order in case No. F16901499 (499) and counts 5-7 were drawn from the
commitment order in case No. F16903119 (119). The District Attorney listed the case
numbers of both the underlying cases on the purported unified information, but
unilaterally designated 119 as the “Lead” case. This purported unified information was
presented to the clerk’s office for filing on November 29, 2016, but, as reflected in the
dockets of both the underlying cases, 119 and 499, 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.1
       It appears the judicial assistant for the relevant court department filed the
purported unified information on December 1, 2016, at the time of the scheduled
arraignments, as reflected by the file stamp on the information. Along with the file
stamp, the word “CONSOLIDATED” was written by hand on the information’s caption.
After significant confusion, Henson was finally arraigned on this “consolidated”


1      See Fresno County Superior Court docket for cases 119 and 499. (The majority
disputes the citation to the trial court dockets in cases 119 and 499 as being outside the
record on appeal. (Maj. opn. ante, at p. 4, fn. 3.) However, under Evidence Code
sections 452 and 459, this court may take judicial notice of any trial court records.)
information on December 15, 2016. On the same date, the docket for 119 was updated to
reflect that 119 and 499 were consolidated by court order, with 119 designated as the
“lead” case.2 The docket of the other case, 499, likewise reflected that it had been
consolidated with 119 per court order on December 15, 2016, whereupon “[a]ll
proceedings will be recorded in [case] 119.”3
       Henson subsequently brought a motion pursuant to Penal Code4 section 995 to
dismiss the unified information as filed. In the motion, Henson contended:

       “After the preliminary hearings held separately in F-119 and F-499, the
       [District Attorney] consolidated both cases on one Information, without
       moving the court to do so. This is in direct violation of the California Rules
       of Court and the California Penal Code and despite the fact that two
       separate appointed attorneys were handling the respective cases. Defense
       counsel was not noticed, nor given an opportunity to object at a
       consolidation hearing. Rather, defense counsel was put on the defensive at
       the held to answer arraignment, and attempted to make an objection to the
       consolidated Information. [¶] There is no new case number for these
       consolidated cases; rather, the People are using both former case numbers
       on the new Information. Further, there was no evidence shown to support
       Counts 1-4 in the preliminary hearing in F-119. Alternatively, there was no
       evidence shown to support Counts 5-7 in the preliminary hearing in F-499.
       For these reasons, defense respectfully requests this court dismiss the
       Information as filed.”
       The motions judge determined that the court was required to evaluate the
information with reference to the record of the “lead” case alone because, despite the
docket notations, there was no court order consolidating the cases, nor had the District
Attorney moved to consolidate the cases.5 The court reasoned that filing the information

2      See Fresno County Superior Court docket for case 119.
3      See Fresno County Superior Court docket for case 499.
4      Subsequent statutory references are to the Penal Code unless otherwise specified.
5      At the hearing on the defense’s section 995 motion, the District Attorney stated,
with regard to the unified information: “It was not a motion to consolidate, Your Honor.”
The majority acknowledges, furthermore, that the arraignment court did not order the
relevant cases to be consolidated.


                                             2
by itself did not consolidate the respective actions in which the charges arose, in the legal
sense of merging the complete records of the actions so that they become one action
going backward as well as forward to trial and judgment. The court noted that
consolidation is accomplished by order of the court upon the filing of a motion by either
party and is by no means a prosecutorial charging decision. (See § 954.) It therefore
concluded that the District Attorney could not unilaterally consolidate separate criminal
actions simply by including charges from these actions (here, 119 and 499) in a single
information and filing the latter.6
       Having determined that the cases at issue were not in fact consolidated—because
simply filing a purported unified information could not accomplish that—the court
evaluated the information, for purposes of Henson’s section 995 motion, against the
discrete record of the case in which the unified information was filed, i.e., case 119.
Since there was no support for counts 1-4 of the unified information in the commitment
order or preliminary hearing transcript contained in case 119, the court dismissed these
counts for a lack of evidence that the defendant was legally committed by a magistrate or
committed with probable cause. (See § 995, subd. (a)(2)(A), (B).)
       The District Attorney filed the instant appeal and the majority reverses. For the
reasons given below, I would affirm the trial court.

I.     Historical Overview: The 1951 Amendments to the Penal Code (Senate Bill
       No. 543)
       As the District Attorney acknowledges, the two provisions at the heart of this case
are sections 739 and 954. We must interpret these provisions to decide whether the


6      Black’s Law Dictionary defines “Consolidation of actions” as follows: “The act
or process of uniting several actions into one trial and judgment, by order of a court,
where all the actions are between the same parties, pending in the same court, and
involving substantially the same subject-matter, issues and defenses.” (Black’s Law Dict.
(4th ed. 1951) p. 382, col. 1 [the present version of § 954, the statute permitting
consolidation of cases, dates to 1951].)


                                              3
District Attorney’s actions in this matter comport with them, and in turn, whether the
motions judge properly dismissed counts 1-4 of the information. Sections 739 and 954
were last addressed by the Legislature in 1951, when a comprehensive overhaul of the
procedural provisions of the Penal Code was implemented by Senate Bill No. 543 (1951
Reg. Sess. (Senate Bill 543)), in view of the division of the state’s court system into
municipal and superior courts.7 As noted in the Legislative Counsel’s “Report on Senate
Bill No. 543,” dated July 12, 1951, “[t]he declared purpose of this bill [was] to make all
the procedural provisions of the Penal Code applicable to all proceedings in all courts, so
far as it is possible and practicable (Report of Senate Interim Judiciary Committee, p. 25,
transmitted June 19, 1951).” (Legis. Counsel, Rep. on Sen. Bill No. 543 (1951 Reg.
Sess.) July 12, 1951, p. 12.) Accordingly, Senate Bill 543 restructured and amended
scores of sections in Part 2 (“Of Criminal Procedure”) of the Penal Code. (Stats. 1951,
ch. 1674, §§ 1-161, pp. 3829-3860.) It added section 739 (formerly § 809) and amended
section 954. In light of the comprehensive and integrated nature of the changes effected
by Senate Bill 543, sections 739 and 954 must be understood in the context of the
purposes of Senate Bill 543 and with reference to the conditions, including the court
structure, that existed when it was enacted.
       Given the establishment of the two-tiered structure of municipal and superior
courts, Senate Bill 543 made several changes to rationalize the criminal procedure
provisions of the Penal Code to accommodate and facilitate the functions of the
municipal courts. In 1951, the Penal Code already specified that “[e]ach municipal court
shall have jurisdiction in all criminal cases amounting to misdemeanor.” (Former


7      Municipal courts were authorized by 1924 amendments to article VI of the
California Constitution and the 1925 Municipal Court Act. (Stats. 1925, p. 648.) The
first municipal court was established in 1925 in Long Beach, followed by one in Los
Angeles in 1925, and in San Francisco in 1930. (See Ames, The Origin and Jurisdiction
of the Municipal Courts in California (1933) 21 Cal. L.Rev. 117.)


                                               4
§ 1462.) Historically, misdemeanors used to be prosecuted by indictment; subsequently,
they were prosecuted by indictment or information; and, immediately prior to the 1951
amendments, they were prosecuted by indictment, information, or complaint. (See
former § 801 (1872) [“An indictment for any misdemeanor must be found within one
year after its commission.”]; former § 801 (1880) [“An indictment for any misdemeanor
must be found or an information filed within one year after its commission.”]; former
§ 801 (1933) [“An indictment for any misdemeanor must be found or an information or
complaint filed within one year after its commission.”].) Senate Bill 543, however,
added a new section, section 740, which specified that “all public offenses triable in the
inferior courts must be prosecuted by written complaint.” (Stats. 1951, ch. 1674, §§ 5, 6,
p. 3831.)
       Similarly, Senate Bill 543 also amended section 949 to reflect the separate roles of
the municipal and superior courts. Previously, section 949, which was enacted in 1872
and amended in 1880 (Stats. 1880, ch. 47, § 14, p. 12), had stated: “The first pleading on
the part of the people is the indictment or information.” Senate Bill 543 provided,
“Section 949 of [the] code is amended to read: The first pleading on the part of the
people in the superior court is the indictment, information, accusation .… The first
pleading on the part of the people in all inferior courts is the complaint ….” (Stats. 1951,
ch. 1674, § 42, p. 3836.) Thus, Senate Bill 543 amended section 949 to reflect the state’s
two-tiered court system, where misdemeanors were tried in the municipal courts on
complaints, and felonies were tried in the superior courts on informations.
       Among other changes effected by Senate Bill 543 were updates to the terminology
reflected in part 2 (“Of Criminal Procedure”) of the Penal Code, and the addition of a
provision defining important terms. These updates, in keeping with the declared purpose
of Senate Bill 543, were driven by the division of the court system into, primarily,
municipal and superior courts. In light of the two-tiered court system and the addition by
Senate Bill 543 of section 740, specifying that misdemeanors were to be prosecuted

                                             5
solely by complaint, Senate Bill 543 replaced the terms “indictment” and “information”
with the new term, “accusatory pleading,” in numerous provisions appearing in Part 2 of
the Penal Code. (See Legis. Counsel, Rep. on Sen. Bill No. 543, July 12, 1951, p. 4
[“Bill deletes references to indictment or information, substituting therefor references to
accusatory pleading.”]; People v. Tideman (1962) 57 Cal.2d 574, 580-581 (Tideman) [in
1951, the words “accusatory pleading” were substituted as more briefly inclusive of the
words “indictment,” “information,” and “complaint”].) As noted above, Senate Bill 543
also added section 691, entitled “Definitions,” which defined various terms, including
“accusatory pleading.” (Stats. 1951, ch. 1674, § 4, p. 3830.) Section 691, subdivision
(4), as added by Senate Bill 543, provided: “The words ‘accusatory pleading’ include an
indictment, an information, an accusation, a complaint filed with a magistrate charging a
public offense of which the superior court has original trial jurisdiction, and a complaint
filed with an inferior court charging a public offense of which such inferior court has
original trial jurisdiction.” (Stats. 1951, ch. 1674, § 4, p. 3830.)
       Senate Bill 543 also added a new title 2, entitled “Mode of Prosecution,” to part 2
of the Penal Code. The new title 2 contained four provisions: sections 737, 738, 739,
and 740. (Stats. 1951, ch. 1674, §§ 5, 6, pp. 3830-3832.) Section 737 provided: “All
public offenses triable in the superior court must be prosecuted therein by indictment or
information.” (Stats. 1951, ch. 1674, § 6, pp. 3830-3832.) Section 738 provided (and
still provides): “Before an information is filed there must be a preliminary examination
of the case against the defendant and an order holding him to answer made under Section
872. The proceeding for a preliminary examination must be commenced by written
complaint as provided in [section 806].” (Stats. 1951, ch. 1674, § 6, pp. 3830-3832.)
Section 739, addressing the information itself (see below), was moved into the new title 2
from title 3 of part 2, where it was former section 809 (former section 809 was repealed
by Sen. Bill 543). (Stats. 1951, ch. 1674, §§ 5, 6, 26, p. 3831.) Finally, section 740 (also



                                               6
mentioned above) specified that “all public offenses triable in the inferior courts must be
prosecuted by written complaint.” (Stats. 1951, ch. 1674, § 6, p. 3831.)
       Section 739 is pivotal to the issue before us. As stated above, as enacted by
Senate Bill 543, section 739 basically tracked the language of former section 809
(“Information to be filed”), originally enacted in 1880 and last amended in 1927 (Stats.
1880, ch. 47, § 12; Stats. 1927, ch. 611, § 1, p. 1045.) Former section 809, as amended in
1927, provided in pertinent part: “When a defendant has been examined and committed,
as provided in section 872 of this code, it shall be the duty of the district attorney, within
fifteen 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.… It may 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. 611, § 1, p. 1045.) Section 739, as added by Senate Bill 543, did not
substantively amend section 809; it provided (and still provides): “When a defendant has
been examined and committed … it shall be the duty of the district attorney … to file in
the superior court … 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.” (Stats. 1951, ch. 1674, § 6, p. 3831.) The
legislative history of Senate Bill 543 indicates that section 739 established the “procedure
to be followed by [the] district attorney in filing [the] information” and that this
procedure had existed all along in the form of former section 809. (See Legis. Counsel,
Rep. on Sen. Bill No. 543, July 12, 1951, p. 2 [§ 739 “retained” existing procedure for
filing information].) Section 739 is presently entitled: “Offenses triable in superior
court; information; filing; permissible charges; form.”
       Finally, Senate Bill 543 also amended section 954. In 1872, when section 954 was
enacted, it provided: “The indictment must charge but one offense, and in one form only,

                                               7
except that when the offense may be committed by the use of different means, the
indictment may allege the means in the alternative.” (Enacted Stats. 1872.) “In 1915,
however, section 954 was amended to, for the first time in this state, not only 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 ... under separate counts’ but
also the consolidation for trial of two or more accusatory pleadings separately charging
such offenses.” (Tideman, supra, 57 Cal.2d at p. 580; Stats. 1915, p. 744.) Accordingly,
upon its amendment in 1915, section 954 provided, in pertinent part: “The indictment or
information 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.” (Stats. 1915, p. 744.)
       Section 954 was further amended in 1927; the 1927 version of section 954
remained unchanged until 1951. (Stats. 1927, ch. 611, § 1, p. 1042.) Section 954, as
amended in 1927, provided: “An indictment, information, or complaint may charge 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.” (See Stats. 1927, ch. 611, § 1, p. 1042.) Thus, in
1927, after the creation of the municipal courts, section 954 permitted consolidation
when two or more informations were at issue, as it was at that point that the relevant
cases were in the proper posture for consolidation (see below). This brings us to 1951
and the present version of section 954, at issue here. As amended by Senate Bill 543,
section 954 provided (and still provides), in pertinent part: “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

                                             8
class of crimes or offenses, under separate counts, and if two or more accusatory
pleadings are filed in the same court, the court may order them to be consolidated.”
(Stats. 1951, ch. 1674, § 45, pp. 3836-3837, italics added.)
       As repeatedly reflected in the legislative history of Senate Bill 543, its “declared
purpose” was to “make all the procedural provisions of the Penal Code applicable to all
proceedings in all courts.” (Legis. Counsel, Rep. on Sen. Bill No. 543, July 12, 1951, p.
12.) As stated above, Senate Bill 543 added section 740, which specified, “all public
offenses triable in the inferior courts must be prosecuted by written complaint.” (Stats.
1951, ch. 1674, § 6, p. 3831.) Senate Bill 543 also amended section 949 to clarify that
the first accusatory pleading on the part of the People in the inferior courts is the
complaint and in the superior courts is the information. Next, with regard to the
consolidation provision of section 954, by replacing the words “indictments or
informations” with the words “accusatory pleadings” and adding the word “same” before
court, the Legislature made this provision applicable to all courts. Specifically,
municipal courts were thereby empowered to consolidate misdemeanor complaints for
trial in the interest of judicial efficiency among other factors, and similarly, superior
courts were authorized to consolidate felony informations for trial, for the same
purposes.8 The amendment to section 954 perfectly accorded with Senate Bill 543’s

8       While the 1951 version of section 954 technically appears to permit consolidation
of felony complaints in municipal (now, magistrate) court, in practice this would rarely
come up, as the inquiry courts undertake in considering the question of consolidation is
more appropriately conducted later in the proceedings. In considering the question of
consolidation, the court evaluates the cross-admissibility of the relevant offenses and
evidence, the relative strength of the cases at issue, and the possibility of prejudice to the
defendant. (See People v. Lucas (2014) 60 Cal.4th 153, 214 (Lucas), disapproved on
other grounds by People v. Romero and Self (2015) 62 Cal.4th 1.) Prior to preliminary
examinations in the relevant cases, there would be no evidence before the court for it to
assess these factors. In any event, consolidation is superfluous at the complaint stage in
light of section 1009. Section 1009 permits amendment of a complaint, with or without
court permission depending on the posture of the case, to add “separate counts which
might properly have been joined in the original complaint.”


                                               9
stated purpose, i.e., to make the procedural provisions of the Penal Code applicable to
both the municipal and superior courts.
II.    The Respective Roles of Sections 739, 949, and 954
       The issue in this appeal is the propriety of the District Attorney’s actions in filing
a single information incorporating charges from the two separate criminal cases pending
against Henson and, ultimately, the propriety of the motions judge’s ruling in dismissing,
under section 995, the charges related to one of the cases. The majority endorses the
procedure the District Attorney utilized here, and, in doing so, announces a new rule
authorizing the People, at the point when an initial information is to be filed in multiple
cases of the same type pending against the defendant, to unilaterally combine charges
from such cases in a single information, the filing of which automatically serves to
consolidate the underlying cases. In reaching this conclusion, the majority diverges
sharply from, and goes beyond, the District Attorney’s own arguments in defense of the
procedure at issue here. I disagree with the District Attorney’s contentions as well as the
majority’s holding, and would affirm the motions judge.

       A. The Divergence Between the District Attorney’s Argument and the
          Majority’s Approach
       The District Attorney’s position is that, because an information is the People’s
first pleading in superior court (as opposed to municipal or magistrate court), the People
have the discretion to combine charges from separate cases into a single unified
information, when an initial information is due to be filed in the relevant cases. Thus, the
District Attorney argues that after initiating separate criminal cases with the same types
of charges against a particular defendant, taking them to separate preliminary hearings,
and obtaining separate commitment orders in each case, the People are further authorized
to unilaterally combine, in a single information, the charges reflected in the commitment
orders and/or preliminary hearing transcripts in those cases. In a nutshell, the District
Attorney’s argument is that just as the inclusion of various charges in a complaint is a


                                             10
matter of prosecutorial charging discretion, the inclusion of charges from separate cases
in a single information is also a matter of prosecutorial charging discretion. The District
Attorney’s argument relies on section 949, which states as a matter of fact, that the
information is the first pleading on the part of the People in superior court felony cases.
The District Attorney’s argument also implicates sections 739 and 954.
       Regarding sections 739 and 954, the District Attorney contends that while section
739 specifies that an information must be based on the commitment order or preliminary
hearing in a particular case and filed within 15 days after the commitment, section 954
independently permits the People to add together the same kinds of charges from multiple
cases in a single information. Specifically, the District Attorney argues: “[W]hile the
filing of an information is authorized by section 739, and that section makes clear that the
resulting information must be supported by what was presented to a magistrate, joinder is
separately authorized by section 954.” (Italics added.) In briefing and at oral argument,
the District Attorney made clear that her argument rests on section 954’s initial
provision—which authorizes the People to bring multiple charges of the same class of
offenses in an individual case—and not on the consolidation provision of this statute.
The deputy district attorney who argued the case for the District Attorney also
acknowledged that the argument that the initial provision of section 954 permits the
People to combine the same types of charges from separate cases—upon the issuance of
commitment orders in those cases—in one information, succeeds or fails depending on
the role of section 739, with respect to the procedure for filing an information and the
content of an information. Specifically, he noted: “I’m not trying to undercut my
argument. This is in our briefing. The only issue that could be made is if [section] 739 is
viewed as somehow restrictive rather than permissive. In other words, if you say that by
saying what must be included in the information and what time period it must be filed,
that somehow precludes you from filing anything else, well then our position is
incorrect.”

                                             11
       The deputy district attorney further confirmed that the concept of consolidation
was irrelevant to the People’s argument, which focuses on a specific moment in time, i.e.,
when an initial information, the first accusatory pleading in the superior court, is to be
filed in the relevant cases. He emphasized: “We did not consolidate anything. There
was nothing to consolidate.” When it was pointed out that a prosecutor’s decision to
combine charges from separate cases into a single information would not itself
consolidate the respective records of these cases, the deputy district attorney disagreed.
Specifically, he responded: “It is true administratively that the court creates [separate]
files. That, in all candor, is none of our business.… The fact that they had two files
below is not our business. It is not our fault that the court would like there to be some
linear response to [the] two cases … in superior court. Again, not our issue.” The deputy
district attorney’s nonchalant response ignored the significant confusion the purported
unified information at issue here generated in the superior court clerk’s office as well as
among concerned parties in the courtroom. The only way the arraignment court was even
able to file the unified information presented by the District Attorney was to deem the
underlying cases consolidated per court order, as required under the consolidation
provision of section 954 (although in reality there was no such court order).
       In light of obvious deficiencies in the District Attorney’s argument, the majority
takes a somewhat different approach to endorse the actual practice that the District
Attorney seeks to defend here, and, in turn, to reverse the motions judge’s ruling. The
majority accepts the District Attorney’s argument that, under section 949, the information
is the first pleading on the part of the People in superior court (as opposed to municipal or
magistrate court), whereby the People may, at the point an initial information is to be
filed in multiple relevant cases, combine, consistent with the initial provision of section
954, charges from those cases in a single information as a matter of prosecutorial
charging discretion. However, the majority departs from the District Attorney’s
understanding of the role of section 739. Unlike the District Attorney, who argues that

                                             12
the initial provision of section 954 provides an independent basis, separate and apart from
section 739, to add together charges from separate cases in one information, the majority
posits that section 739 itself specifically permits the People to combine charges from any
number of separate cases in a single information. In adopting this expansive
interpretation of section 739, the majority terms the District Attorney’s narrower and
more circumspect interpretation of the statute as “imprudent.” (Maj. opn. ante, at p. 23,
fn. 13.)
       Finally, the majority addresses the consolidation provision of section 954, which
permits the court, when two or more accusatory pleadings are pending in the same court,
to consolidate such accusatory pleadings at the behest of either party. In interpreting this
provision, the majority departs, for the second time, from the District Attorney’s position,
which appears to be that consolidation per se was not necessary here because the court is
automatically required to merge cases upon the People’s decision, under the first
provision of section 954, to combine the charges from those cases in a single information
and the filing of the latter. While the District Attorney argues that section 954’s
consolidation provision has no relevance here, the majority instead posits that the
consolidation provision itself indicates that the People may unilaterally consolidate cases
under the circumstances applicable here. In other words, the majority states that because
the consolidation provision requires, by its own terms, court permission to consolidate
two or more accusatory pleadings pending in the same court, it suggests the People can
unilaterally consolidate cases in other circumstances, for example when there are not two
or more accusatory pleadings pending in the same court. The majority therefore reads a
negative implication into the consolidation provision of section 954, whereby this
provision actually permits consolidation in circumstances, and by means, other than
those specified therein. The majority in turn holds that here the District Attorney could
properly combine, in a single unified information, charges from cases 119 and 499, after
the issuance of the respective commitment orders in these cases, and thereby consolidate

                                             13
these cases without providing notice to the defendant or obtaining permission from the
court. The majority thus concludes that the motions judge erred in granting Henson’s
section 995 motion because, in ruling on the motion, the judge was required to consider
the records of both case 119 and case 499, as they were automatically consolidated upon
the filing of the unified information.
       I disagree with the majority’s reasoning as well as its conclusion. In my view, the
District Attorney’s actions are precluded by section 739, nor are they authorized by
sections 949 and 954. Section 739 requires the People to file a separate information in
each individual case that proceeds to preliminary examination and in which a
commitment order is issued; the information must be filed within 15 days of “the
commitment.” As for section 949, this statute was amended in 1951, as pertinent here, to
specify that “[t]he first pleading on the part of the people in the superior court is the
indictment, information, accusation” and “[t]he first pleading on the part of the people in
all inferior courts is the complaint.” (Stats. 1951, ch. 1674, § 42, p. 3836.) Section 949
does not nullify the role of a felony complaint, and, in turn, does not authorize the People
to unilaterally combine charges arising from separate complaints into a single
information at any point in time. As for section 954, section 954 was amended in 1915
and 1951, as relevant here, and as is clear from its historical context, its present
provisions were intended to permit the People to charge multiple offenses in an
individual case and to further permit, at the behest of either party, the municipal court to
consolidate two or more misdemeanor cases (complaints) and the superior court to
consolidate two or more felony cases (informations). I disagree with the majority that
sections 739, 949, and 954 permit the People to combine charges from separate cases,
after issuance of the commitment orders therein, in a single information, and to thereby
unilaterally consolidate these cases.




                                              14
       B. Section 739
       Taking section 739 first, this statute provides: “When a defendant has been
examined and committed … it shall be the duty of the district attorney … to file in the
superior court … 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.” (Stats. 1951, ch. 1674, § 6, p. 3831, italics
added.) Notably, section 739 employs the word “the,” to qualify the terms
“commitment,” “order of commitment” and “magistrate,” instead of the words “a,” “an,”
or “any.”9 It also uses the singular form of all these words. Furthermore, the 15-day
clock specified in section 739 logically starts ticking from a specific moment, i.e., the
moment of a particular commitment, and ends at a specific moment, i.e., 15 days later, so
as to provide a clear mechanism to evaluate the timeliness of the subsequent information.
       The language employed in section 739, as well as its mechanism for evaluating the
timeliness of the information, make clear that the statute requires the district attorney to
file a separate information in each individual case in which commitment has occurred
and the clock is ticking from day 1 to day 15; the timeliness of the information can easily
be assessed in relation to the date of the commitment in that case. The fact that section
739 specifies a relatively short window of time, as measured from the day of “the
commitment,” to file the information, also suggests the Legislature intended a separate
information to be filed in each case, rather than charges from multiple cases to be
combined in a single information. Furthermore, interpreting section 739 as permitting the
combining of charges from multiple commitment orders and/or preliminary hearing


9       Similarly, while an information may be amended to add additional counts, on
account of the requirements of section 739, an information may only be amended to
charge offenses shown by the evidence taken at “the preliminary examination.” (§ 1009,
italics added.)


                                             15
transcripts in one information does not make sense as, under such a scenario, the
timeliness of the information could not be evaluated with respect to a specific 15-day
window, as clearly contemplated by the statute. Section 739 does not suggest that the
timeliness of a particular information may be measured with respect to multiple
commitments in multiple cases. Clearly, had the Legislature intended for the People to
combine offenses from separate cases in one information, it would have said so and
further specified how the timeliness of the resulting information was to be assessed in
that scenario.
       I conclude that the only reasonable way to interpret section 739 is that it requires
the People to file a separate information in each case in which a preliminary hearing has
occurred and a commitment order issued. As noted above, the majority takes the
opposite view, specifically that section 739 permits the People to combine charges from
multiple preliminary hearings and commitment orders, from separate cases, in a single
information. The majority distorts the explicit language of section 739 to reach its
conclusion and fails to persuasively explain when the 15-day window for filing a
particular unified information, and to assess its timeliness, would begin and when it
would end, given the specification in section 739 that the information must be filed
“within 15 days after the commitment,” with the word “commitment” qualified by the
definite article and denoted in the singular. (§ 739, italics added.)
       The proposition propounded by the People, i.e., that section 954 provides an
independent basis, separate and apart from section 739, to combine charges from separate
cases in a single information is also precluded by section 739 itself, which defines, with
particularity, what an information is. Specifically, section 739 clarifies that an
information may only encompass charges from “the order of commitment” and “the
evidence taken before the magistrate” in a particular case, a point the District Attorney
does not dispute. Indeed, the legislative history of Senate Bill 543, which enacted section
739, further establishes that section 739 specifies the “procedure to be followed by

                                             16
district attorney in filing information,” without recourse to other provisions such as
section 954. (Legis. Counsel, Rep. on Sen. Bill No. 543, July 12, 1951, p. 2.) The
District Attorney has not supplied any authority for the novel idea that section 954’s
initial provision provides an avenue to circumvent section 739’s limitation on the scope
of an information.
       In sum, the District Attorney’s argument that the People may properly file the
unified information at issue here, is foreclosed by section 739, which, as explained above,
requires the filing of a separate information in each case in which “the commitment” has
occurred. (§ 739.) This interpretation of section 739 is further buttressed by the
jurisprudence interpreting this statute. For example, numerous cases clarify that an
information may not “charge a crime unrelated or unconnected with the transaction which
was the basis of the commitment order.” (See, e.g., People v. Kellin (1962) 209
Cal.App.2d 574, 575-576; also see People v. Burnett (1999) 71 Cal.App.4th 151, 165;
People v. Terry (2005) 127 Cal.App.4th 750, 765-766; People v. Thiecke (1985) 167
Cal.App.3d 1015, 1017, fn. 1.) The case law addressing section 739, a statute that in
substance has been unchanged since 1880, does not suggest that the People can
unilaterally include charges from multiple commitment orders, in separate cases, in a
single information. On the contrary, the case law indicates that section 739 requires a
separate information to be filed in each case based on the commitment order and/or
preliminary hearing transcript related to that case. This interpretation of section 739 also
accords with the requirement that a defendant have notice, as a matter of due process, of
all the potential charges he faces in a given case. (See Burnett, supra, at p. 175 [“the
preliminary hearing transcript … is the touchstone of due process notice to a defendant”];
People v. Superior Court (Mendella) (1983) 33 Cal.3d 754, 764.) Of course, after the
information is filed in a particular case, the court may, upon conducting the requisite
inquiry, order the consolidation of that case with another case, or other cases, in the same
posture.

                                             17
       C. Sections 954 and 949
       As for the role of section 954, as indicated above, the first provision of section 954
simply permits the People to file multiple charges in an individual case, starting with the
complaint, and by way of the complaint, preliminary examination, and commitment
order, in the eventual information, or, by means of amendment or formal consolidation by
the court. This provision reflects a departure from the earliest versions of the statute that
required the People to charge only one offense in an individual case. It does not permit
the People to combine charges from separate complaints or cases in one information, so
as to effectively consolidate separate cases without court permission. I thus disagree with
the majority’s conclusion that the District Attorney’s actions here were authorized by
sections 739, 949, and the initial provision of section 954, and further, that the filing of
the unified information consolidated the two underlying cases consistent with the
consolidation provision of section 954. In my view, the People do not have the same
discretion to add charges in an information that they possess at the point of filing an
initial complaint. The People’s discretion as to the range of charges that may be included
in an information is limited, as explained above, by section 739. To the extent the People
want to combine charges from two separate cases in one information, they may do so by
filing a separate information in each case pursuant to section 739 and, thereafter, moving
to consolidate the two informations under the consolidation provision of section 954.
       Turning to the consolidation provision of section 954, I agree with the majority
that the use of the term “the same court” in the consolidation provision of section 954
signifies the two-tiered system of municipal and superior courts that existed in 1951,
when the statute was last amended to insert the word “same” before the word “court.”
However, in contrast to the majority, I believe the context and purpose of the 1951
amendment shows that the term “the same court” was deployed to specifically permit (1)
consolidation for trial of two or more misdemeanor complaints in the municipal courts,
and (2) consolidation for trial of two or more informations in the superior court. In other

                                              18
words, the consolidation provision of section 954 contemplates that consolidation in
felony cases would occur, by order of the court, after filing of the informations in, and
transfer of, the relevant cases from municipal court to superior court. Once the
informations are filed and the cases transferred to superior court, then, under section 954,
these cases are in the appropriate posture for consolidation for trial, at the behest of either
party. (See, e.g., People v. Jerez (1989) 208 Cal.App.3d 132, 137 [under § 954,
consolidation or joinder of cases requires court permission and either party may move the
court to do so]; People v. Gonzales (1990) 220 Cal.App.3d 134, 142-143 [“[S]ection 954
controls consolidation in criminal proceedings,” whereby “[t]he court, in its discretion
may order consolidated accusatory pleadings charging … ‘two or more different offenses
of the same class of crimes or offenses’”]; People v. Maury (2003) 30 Cal.4th 342, 391
[trial court effects joinder of accusatory pleadings containing “‘[o]ffenses falling within
[section 954’s] description’”].) Indeed, since consolidation is permitted only when two
misdemeanor complaints or two felony informations are pending in the same court,
section 954, unlike numerous other statutes, did not require amendment after unification
of courts in California.
       Thus, the plain language of section 954 makes perfectly clear that consolidation is
the province of the court and further, that consolidation is permitted only when two or
more accusatory pleadings are pending in “the same court.” (§ 954.) In addition, the
nature of the inquiry applicable to consolidation or joinder of accusatory pleadings—
which requires consideration of factors such as cross-admissibility of the relevant crimes
and evidence, the strengths of the relevant cases, and prejudice—indicates that the statute
contemplates that consolidation or joinder of cases is to be effected by the court alone,
and not, under any circumstances, by the district attorney. (See Lucas, supra, 60 Cal.4th
at p. 214.)
       The legislative history of section 954 also supports the interpretation of the
statute’s consolidation provision that I posit here. First, the Legislative Counsel’s Report

                                              19
on Senate Bill 543 notes that the term “accusatory pleading” was in fact intended to
signify an “indictment, information, accusation, and complaint filed with court having
original trial jurisdiction of offense stated therein.” (Legis. Counsel, Rep. on Sen. Bill
No. 543, July 12, 1951, pp. 1, 4.) Second, both the Legislative Counsel’s report and a
letter from the Alameda County District Attorney to the Governor’s legislative secretary
indicate that “the principal purpose of [the changes made by Senate Bill 543] is to make
the procedural provisions of the code applicable to all proceedings in all courts.” (J.F.
Coakley, District Attorney of Alameda County, letter to Beach Vasey, Legislative
Secretary, July 3, 1951; Legis. Counsel, Rep. on Sen. Bill No. 543, July 12, 1951, p 12.)
In sum, when section 954 is viewed in the context of the 1951 amendments that enacted
the current version of the statute, it becomes clear that its consolidation provision was
intended to permit the consolidation, in the municipal court, of two or more misdemeanor
complaints and, similarly, the consolidation, in the superior court, of two or more
informations.
       While, as stated above, the majority and I agree as to the significance of the term
“the same court” in the consolidation provision of section 954, my ultimate takeaway
from this point of commonality is very different from the majority’s. To my mind, the
consolidation provision of section 954 is unambiguous and must be interpreted in
accordance with its plain meaning as well as its legislative history. The provision’s plain
terms demonstrate that the Legislature affirmatively made consolidation a matter of
judicial discretion and, in felony cases, effectively limited it to the stage when the cases
at issue had moved from the municipal (or magistrate) court to the superior court, i.e., the
stage after filing of the information in the superior court. The legislative history, as noted
above, in turn reinforces this interpretation. The consolidation provision of section 954,
correctly interpreted, thus precludes any attempt by the District Attorney to unilaterally
consolidate separate cases, and along with section 739, further precludes consolidation of
felony cases before an information has been filed in each relevant case. Here, the unified

                                             20
information therefore did not automatically consolidate the relevant cases, and, as
explained in more detail below, the motions judge in turn appropriately evaluated
Henson’s section 995 motion with reference to the record of case 119 alone and correctly
dismissed counts 1-4.
       The majority has a more generous takeaway from the proposition that the term
“the same court” in section 954 is a reference to the distinction between municipal (and,
now, magistrate) courts on the one hand and the superior court on the other. Specifically,
the majority asserts, “[i]t is logical to conclude,” based on the erstwhile “separation of
courts,” that “section 954 meant judicial permission was required to consolidate two or
more accusatory pleadings filed in municipal court, or two or more accusatory pleadings
filed in superior court,” but such “[p]ermission would not have been required [for the
People to] file a single information as their first pleading in superior court” covering
charges from “separate complaints.” (Maj. opn. ante, at p. 15.) Thus, brushing aside
section 954’s affirmative mechanism for consolidating cases, a mechanism that also
drives the record-keeping and docket management procedures of the courts, the majority
declares that “while court permission is required to consolidate two complaints or two
informations, it 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.” (Maj. opn. ante, at p. 21.) The majority thus holds that filing a combined
information, such as the one at issue here, automatically consolidates the underlying
cases. In turn, it finds that the motions judge erroneously granted Henson’s section 995
motion to dismiss counts 1-4 of the information, because he improperly failed to consider
the records of both cases, including both commitment orders and preliminary hearing
transcripts, as he was required to do.
       In contrast to the majority, the District Attorney relies solely on the first provision
of section 954 (which permits the People to charge multiple offenses in an individual
case) and explicitly rejects the proposition that a consolidation of the relevant cases

                                              21
occurred or was necessary here. However, charging multiple offenses in a particular case
is conceptually distinct from joining or consolidating separate cases or accusatory
pleadings for purposes of one trial and judgment. When the People include multiple
charges under separate counts in a complaint, it has no implications regarding the merger
of any records or any effect on the record of another case. In contrast, joinder or
consolidation of separate accusatory pleadings signifies the merging of the complete
records of separate actions. When a court orders consolidation under section 954’s
consolidation provision, the dockets of the erstwhile separate actions are effectively
fused, and the consolidated action proceeds under the number of one of the constituent
cases designated by the court as the lead case. The orderly process contemplated by
section 954—one that generally proceeds on the basis of a written, noticed motion—thus
equips courts to properly designate and manage the dockets of consolidated cases and
there is no confusion as to the status of the underlying cases and the records thereof. The
District Attorney’s reliance on the first provision of section 954 alone is unavailing, as
this provision does not permit the courts to merge the records of the underlying actions;
in turn counts 1-4 of the unified information were properly dismissed by the motions
judge pursuant to Henson’s section 995 motion. As for the majority’s interpretation that
the records of the two cases were in fact consolidated upon the filing of the unified
information, on the basis of a negative implication of the consolidation provision, this
interpretation is precluded by section 739 and the plain language of the consolidation
provision itself.

       D. The Majority’s Expansive and Speculative Interpretation of the Relevant
          Statutes Violates Established Canons of Statutory Interpretation
       The majority’s conclusions depend on expansive and speculative interpretations of
all the statutes at issue—i.e., sections 739, 949, and 954—that violate established canons
of statutory interpretation, which favor interpreting unambiguous statutes in accordance
with their plain meaning and construing them narrowly to achieve their purpose. For


                                             22
example, the majority’s expansive interpretation of section 739 clearly conflicts with the
plain meaning of that statute. Similarly, although section 949 simply states that the first
pleading on the part of the People in the superior court is the information, the majority
imputes far greater meaning to that statute than its plain terms warrant. Specifically, the
majority posits that section 949 and the first provision of section 954, taken together,
authorize the People to combine charges from separate cases in a single information in a
manner akin to the exercise of discretion the People employ at the time of filing an initial
complaint. In addition, with regard to the consolidation provision of section 954,
although this provision specifies that consolidation is the province of the court alone, the
majority nonetheless manages to discern therein, by virtue of negative implication, an
endorsement of unilateral consolidation of cases by the People, by means of filing a
combined or unified information incorporating charges from the cases at issue as the
People’s first pleading in the superior court. However, reliance on putative negative
implications is wholly unnecessary here, and further is speculative, because the
consolidation provision of section 954 affirmatively authorizes, consistent with section
739, a procedural mechanism to attain the precise end result the District Attorney was
trying to achieve here (namely, consolidation of the underlying cases). Rather than
following the harmonious statutory mandates of sections 739, 949, and 954, the majority,
without authority, chooses to alter the roles and expand the reach of these statutes far
beyond the import of their plain terms.
       The majority supplies no persuasive justification for contravening the above-
mentioned basic canons of statutory interpretation in positing such an expansive and
speculative interpretation of sections 739, 954, and 949. (See Bakersfield Home Bldg.
Co. v. J.K. McAlpine Land & Development Co. (1938) 26 Cal.App.2d 444, 448-449
[“[C]ourts are not at liberty to refuse to apply unambiguous language in a statute which
involves no absurdity nor any necessary inconsistency with its general purpose; nor may
they indulge in mere speculation to the effect that the legislature meant something other

                                             23
or less than what it said. They may not depart from the literal construction of the statute
unless they can be reasonably assured that the legislature meant to say something
different from what it appears to have said.”]; Chapman v. Aggeler (1941) 47 Cal.App.2d
848, 853 [“When legislators speak through statutes, their enactments must be given a
strict interpretation. The law must be applied as it is written. It cannot be extended by
judicial interpretation.”].) In contrast, the narrower interpretations of these statutes find
support in their plain terms, longstanding canons of judicial interpretation, as well as the
legislative history of Senate Bill 543, which enacted the present versions of these statutes.
Indeed, the fact that Senate Bill 543 effected a comprehensive overhaul of the criminal
procedure provisions of the Penal Code suggests that, had the Legislature wanted to
authorize the procedure the majority endorses today, it would have provided for it in
Senate Bill 543.
       I conclude that section 739, by requiring the People to file a separate information
in each case, precludes what the District Attorney attempted to do here. Nor do sections
949 and 954 authorize the District Attorney’s actions. The first provision of section 954
simply permits the People to bring multiple charges, under separate counts, in an
individual case, in a departure from the earliest versions of the statute that required the
People to charge only one offense in each case. As for the consolidation provision,
consolidation entails the fusing together of two separate cases and therefore occurs,
pursuant to court order, when two or more accusatory pleadings are pending in the same
court. The fact that either party can pursue consolidation, as well as the criteria that
govern the propriety of consolidation, further establish that consolidation is solely a
matter of judicial discretion.

       E. The Motions Judge’s Ruling was Correct and Properly Avoided the
          Problems that will Flow from the Majority’s Holding
       The Penal Code’s procedural provisions map out a fairly straightforward,
predictable trajectory for criminal cases. Cases proceed from complaint to preliminary


                                              24
hearing and the issuance of a commitment order. Section 739 requires an information to
be filed in each individual case within 15 days after commitment. If two or more
informations are filed in relevant cases in the superior court, they may be consolidated by
the court upon the motion of any party seeking consolidation. Here, the District Attorney
could easily have complied with section 739 and filed two separate informations in the
two cases pending against Henson. The District Attorney could then have moved to
consolidate the cases in compliance with the consolidation provision of section 954.
Instead, the District Attorney chose to file a single information in case 119 encompassing
seven counts, four of which were based on the commitment order in the other case. Since
the District Attorney failed to follow the statutory requirements for filing an information
and thereafter for consolidating cases, the purported unified information did not
consolidate the relevant cases. The cases and their respective records thus remained
separate.
       The majority contends that Henson was limited to a demurrer in contesting the
unified information. A demurrer raises an issue of law as to the sufficiency of the
pleadings and lies only for defects appearing on the face of the accusatory pleading.
(§ 1004; see People v. McConnell (1890) 82 Cal. 620.) Although Henson had the option
of filing a demurrer, he was not limited to that remedy, nor does it appear that a demurrer
would have been sustained. Severance also is not the proper remedy as, like a demurrer,
it too is not geared to attack the false premise of the purported unified or consolidated
information. More specifically, the information purported to be based on a consolidated
record but the records of the relevant cases were not in fact consolidated. Henson
therefore properly opted to bring a section 995 motion, as such a motion requires the
court to evaluate the charges included in the information against the underlying record.
Specifically, in ruling on a section 995 motion, the court considers whether the charges in
an information find support in the commitment order or preliminary hearing transcript in
the record. (See People v. Superior Court (Jurado) (1992) 4 Cal.App.4th 1217, 1226;

                                             25
People v. Graff (2009) 170 Cal.App.4th 345, 360-361.) As here the two relevant cases
were not in fact consolidated, the motions judge was forced to evaluate the information
against the discrete record of case 119. The commitment order and preliminary hearing
transcript therein did not support counts 1-4. The motions judge thus properly dismissed
those counts.
       The majority does not explain how the practice at issue in this appeal is supposed
to work “on the ground.” Its expansive interpretation of sections 739, 949, and 954 has
the potential to significantly disturb the superior courts’ record-keeping procedures and
docket management practices, and to nullify the concept of the “record of the case.” The
majority has essentially held that the People may unilaterally choose to file separate
informations in separate cases or a single information that automatically merges a
number of separate cases, without prior notice to the defendant or the court. When the
People exercise the latter option, the courts, under the majority’s holding, will now be
required to merge the relevant case dockets under a lead case self-designated by the
People, something that heretofore occurred only pursuant to court order. It follows that a
prosecutor, by simply designating a lead case, will be able to dictate which defense
attorney and court department the resulting unified case will be directed to at
arraignment. And this would occur without any notice to the defendant and his
respective attorneys, who not only will not know what to expect but also will be denied
an opportunity to be heard before the People summarily join pending cases. The various
court departments handling the affected cases would similarly be blindsided. A state of
uncertainty would prevail as to how the People may choose to proceed when the time
comes to file an information. In the instant case, the information was filed on the day of
arraignment, which was set at the same time and in the same department in both cases,
but there is no guarantee of that in all or even most instances in which this procedure will
now be applicable. The majority’s decision does not provide any guidelines for resolving
these problems, nor does it explain the value of the procedure it endorses today, in

                                             26
comparison with the more straightforward and orderly procedure that is usually followed.
In my view, rather than being beneficial, the new procedure approved by the majority
creates the potential for significant confusion and disruption in the courts and substantial
prejudice to defendants.
       The majority also does not address the situation that occurred here, when the
District Attorney’s filing of the purported unified information led to the abrupt
disqualification of one of the defendant’s attorneys, eviscerating her ability to contest the
move. The ensuing confusion resulted in unnecessary, even prejudicial, delays
(defendant was in custody at the time), until a new attorney, who had not handled the
preliminary hearing and knew nothing about the case, got up to speed on it. In a situation
where the defendant is represented by multiple attorneys in the underlying cases, which
attorney is supposed to handle the new, unified case, and file, for example, a section 995
motion or other motion to contest the information? The majority provides no answers.
       The potentially disruptive consequences of the majority’s decision represent yet
another reason that the applicable statutes must be read narrowly and in accordance with
their plain meaning. I see no reason to upend the orderly procedural scheme
contemplated by sections 739 and 954, statutes that, in substance, have been part of the
Penal Code since 1880 and 1915, respectively. As the saying goes, “if it ain’t broke,
don’t fix it.” I would affirm the trial court.

                                                                 ____________________
                                                                 SMITH, J.




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