                         TO BE PUBLISHED IN THE OFFICIAL REPORTS


                             OFFICE OF THE ATTORNEY GENERAL

                                       State of California


                                        DANIEL E. LUNGREN

                                          Attorney General


                            ______________________________________

                    OPINION          :
                                     :          No. 91-503
                  of                 :
                                     :          MARCH 18, 1992
        DANIEL E. LUNGREN            :
           Attorney General          :
                                     :

        ANTHONY S. Da VIGO           :

        Deputy Attorney General      :

                                     :
______________________________________________________________________________

            THE HONORABLE DENNIS J. SHEEHY, DISTRICT ATTORNEY, COUNTY OF
SHASTA, has requested an opinion on the following question:

              May a municipal court rule require the attendance of a deputy district attorney at all
arraignment proceedings, applications for bail, and hearings on diversion eligibility?

                                            CONCLUSION

               A municipal court rule may not require the attendance of a deputy district attorney
at all arraignment proceedings, applications for bail, and hearings on diversion eligibility.

                                              ANALYSIS

                The issue presented for resolution concerns the authority of a municipal court to
compel, by rule, the attendance and participation of a deputy district attorney at all arraignment
proceedings, applications for bail, and hearings on diversion eligibility, with full authority to address
such issues as arise in the course of those proceedings. We conclude that the court does not have
such authority.

               The principal statute to be interpreted is Government Code section 26500, which
provides as follows:

                  "The district attorney is the public prosecutor, except as otherwise provided
        by law.

                "The public prosecutor shall attend the courts, and within his or her
        discretion shall initiate and conduct on behalf of the people all prosecutions for
        public offenses." (Emphasis added.)
The words above italicized were added by amendatory legislation in 1980. (Stats. 1980, ch. 1094,
§ 1.) In People ex rel. Kottmeier v. Municipal Court (1990) 220 Cal.App.3d 602, 608-610, the court
explained the 1980 amendment as follows:

               "In People v. Daggett (1988) 206 Cal.App.3d Supp. 1, the appellate
       department of Sacramento County held that section 26500, as amended, did not
       require the attendance of a prosecutor at infraction trials. Relying in part on
       legislative history, the court ruled that the Legislature, in making the amendment,
       was conscious that the amended version would grant the prosecutor discretion in
       appearing, as well as initiating a prosecution. However, the court also pointed out
       that the amendments were made after the decision in People v. Carlucci [(1979) 23
       Cal.3d 249], and that the Legislature was presumed to have been aware of the court's
       ruling that the prosecutor need not be present.

               "Although the language of Government Code section 26500 is certainly not
       free from doubt, we agree with the result reached in People v. Daggett. The phrase
       `attend the courts' is too vague to be of much use in interpretation; what courts?
       When? On its face the statute then appears to grant the district attorney discretion
       both to initiate and conduct the prosecutions. This is undoubtedly the intention of
       the statute, insofar as it means that it is the district attorney's prerogative to determine
       whether to file charges and whether to continue a prosecution. (See People v. Adams
       (1974) 43 Cal.App.3d 697, 707-708.) It is less clear that the statute was intended to
       permit the district attorney to choose when to appear for trial, or what the result of
       his absence should be.

                "We note that it has been stated that the provisions of Government Code
       section 26500 requiring the presence of the prosecutor `are for the benefit of the
       people.' (People v. Thompson (1940) 41 Cal.App.2d Supp. 965, 967.) This suggests
       that there is discretion not to appear, if the district attorney is willing to take the
       consequences of an adverse verdict or ruling, which in most misdemeanor and felony
       cases would be a foregone conclusion. If the District Attorney elected not to appear
       at a serious felony trial involving complex issues and numerous witnesses, two things
       would be clear; he would be in gross dereliction of his duty to the people of the state
       under Government Code section 26500, and the court would be justified in
       dismissing the case.

               "However, we do not think it either necessary or proper to consider such a
       situation, which is not before us. In People v. Carlucci, supra, the court extensively
       discussed the unique nature of infraction prosecutions and the benefits to all sides of
       encouraging expeditious and flexible procedures. (See also In re Dennis (1976) 18
       Cal.3d 687, 695.) The prohibition against appointed counsel in infraction cases (Pen.
       Code, § 19c) ensures that the majority of defendants will be unrepresented, and the
       presence of a prosecutor would be `hardly to defendant's advantage.' (People v.
       Carlucci, supra, 23 Cal.3d at p. 258.) We need not repeat in detail that court's recital
       of the practical considerations underlying the decision that such cases may be
       handled without the presence of a prosecutor; we need only agree and hold that
       petitioner's decision not to provide a prosecutor for infraction trials is not forbidden
       by Government Code section 26500." (Fn. omitted.)




                                                   2.                                                 91-503

                Carlucci, Daggett, and Kottmeier concerned infraction prosecutions. Nevertheless,
since an infraction is clearly a public offense (Pen. Code, §§ 16, 17),1 it necessarily follows from the
holdings in the latter two cases (Carlucci was decided exclusively on constitutional grounds) that
the language "[t]he public prosecutor shall . . . conduct on behalf of the people all prosecutions for
public offenses" cannot be construed to require the appearance of the prosecutor in all such
prosecutions.

                Kottmeier does suggest by way of dictum, however, that the failure of the prosecutor
to appear "at a serious felony trial involving complex issues and numerous witnesses" would result
in the following consequences: first, the prosecutor would be in gross dereliction of his duty to the
people of the state under Government Code section 26500, and second, the court would be justified
in dismissing the case. Still a third consequence may be provided in section 1103:

              "If the prosecuting attorney fails to attend at the trial in the superior court,
       the court must appoint some attorney at law to perform the duties of the prosecuting
       attorney on such trial." (Emphasis added.)

                None of the consequences referred to above purport to authorize the court to compel
the attendance of the prosecutor. Even in a felony case in the superior court, the result of the
prosecutor's failure to attend is expressly prescribed in section 1103, and does not include compelled
attendance. It would be incongruous to conclude that such authority would reside only in an inferior
court.

               In our view, therefore, Government Code section 26500 does not provide a basis for
a municipal court rule compelling attendance of the prosecutor at all arraignments, bail application
hearings, and diversion eligibility proceedings. Indeed, the statute precludes such a rule by granting
public prosecutors discretion in conducting the prosecutions of all public offenses. Carlucci,
Daggett, and Kottmeier support the view that this prosecutorial discretion cannot be infringed by
a court under the circumstances presented. As we shall demonstrate, the statutory provisions
specifically governing arraignments, bail applications, and diversion eligibility proceedings are
consistent with this interpretation of Government Code section 26500.

               1.       Arraignments

               Section 988 provides as follows:

               "The arraignment must be made by the court, or by the clerk or prosecuting
       attorney under its direction, and consists in reading the accusatory pleading to the
       defendant and delivering to him a true copy thereof, and of the endorsements
       thereon, if any, including the list of witnesses, and asking him whether he pleads
       guilty or not guilty to the accusatory pleading; provided, that where the accusatory
       pleading is a complaint charging a misdemeanor triable in an inferior court, a copy
       of the same need not be delivered to any defendant unless requested by him."

Section 1003 states:

               "Both the demurrer and plea must be put in, in open court, either at the time
       of arraignment or at such other time as may be allowed to the defendant for that
       purpose."

   1
    Hereinafter, all undesignated section references are to the Penal Code.

                                                  3.                                             91-503

Thus, the purpose of an arraignment is to inform the defendant of the charge and to provide an
opportunity to enter a plea or to move to set aside the accusatory pleading. (People v. Hill (1967)
251 Cal.App.2d 391; People v. Carter (1966) 245 Cal.App.2d 48; 63 Ops.Cal.Atty.Gen. 193
(1980).) An arraignment proceeding may encompass duties from the ministerial act of delivering
a copy of the accusatory pleading to the judicial act of taking and entering the plea. (67
Ops.Cal.Atty.Gen. 162, 166 (1984); 63 Ops.Cal.Atty.Gen., supra, 197.)

               We perceive nothing expressed or implied in the statutory scheme, nor in any
statutory or constitutional right of the defendant, which would require as a matter of law the
attendance of a public prosecutor at all arraignment proceedings. These provisions are thus
consistent with the reasoning of the Court of Appeal in Kottmeier and the interpretation that
Government Code section 26500 precludes adoption of the municipal court rule in question.

               2.      Bail Applications

                  The traditional method of obtaining a defendant's release from custody pending a
criminal trial is by the posting of "bail," consisting ordinarily of a sum of money or bond deposited
with the court which is forfeited upon the failure of the defendant to appear as required. (See Cal.
Const., art. I, § 12; §§ 1268, 1273; In re Boyle (1974) 11 Cal.3d 165, 169; 71 Ops.Cal.Atty.Gen. 64,
65 (1988).) In the alternative, the court may order the release upon the defendant's "own
recognizance" and agreement to appear in court as required. (See Cal. Const., art. I, § 12; §§ 1269c,
1270, 1318-1320; Van Atta v. Scott (1980) 27 Cal.3d 424, 431-432; 71 Ops.Cal.Atty.Gen., supra,
65.)

                The bail amount is determined in one of three ways: (1) a bail schedule is adopted
by the judges of the county fixing the amount of bail for each offense; (2) when a warrant of arrest
is issued by a magistrate, the amount of bail is endorsed on the warrant; and (3) when a defendant
appears in court, the judge fixes the amount of bail. (§§ 815a, 1269b; 71 Ops.Cal.Atty.Gen., supra,
66.) When the admission to bail is a matter of discretion or where the defendant has been admitted
to bail upon an indictment or information, the court must require that reasonable notice of an
application for bail or reduction in bail be given to the district attorney. (§§ 1274, 1289; 71
Ops.Cal.Atty.Gen., supra, 69-70.) Finally, section 1275 provides in part as follows:

                 "In setting, reducing, or denying bail, the judge or magistrate shall take into
       consideration the protection of the public, the seriousness of the offense charged, the
       previous criminal record of the defendant, and the probability of his or her appearing
       at trial or hearing of the case. The public safety shall be the primary consideration."

                While it appears clear that either side may produce evidence through testimony,
declarations, or representations respecting an application for bail (Van Atta v. Scott, supra, 27 Cal.3d
at 437), we perceive nothing expressed or implied in the statutory scheme,2 or in any statutory or
constitutional right of the defendant, which would require as a matter of law the attendance of a
public prosecutor at all bail proceedings. Hence, these provisions are consistent with the rationale
of Kottmeier and our interpretation of Government Code section 26500, prohibiting adoption of the
municipal court rule at issue.




  2
   The provisions of the Penal Code relative to bail are applicable to cases triable in inferior courts.
(§ 1458.)

                                                  4.                                               91-503
                3.      Diversion Eligibility Hearings

                A number of diversion programs are established by law. (E.g., §§ 1000 [narcotics
and drug abuse]; 1000.6 [domestic violence]; 1001, 1001.50 [misdemeanor pre-trial].) A diversion
program refers to the procedure of postponing prosecution of a misdemeanor offense either
temporarily or permanently. (§§ 1001.1; 1001.50, subd. (c).) Even where the continuance of a
misdemeanor pre-trial diversion program is subject to the approval of the district attorney, the
district attorney is not authorized to determine whether a particular defendant shall be diverted. (§§
1001.2, subd. (b); 1001.50, subd. (b).)

                In some cases, the district attorney is required to determine, in accordance with
prescribed eligibility criteria, and to file with the court a declaration in writing or state for the record
the grounds upon which the defendant is found to be eligible or not, and to make that information
available to the defendant. (§§ 1000, subd. (b); 1000.6, subd. (b).) In all cases, it is the
responsibility of the probation department to investigate and report its findings and
recommendations to the court. (§§ 1000.1, subd. (b); 1000.7, subd. (b); 1001.52, subd. (a).) The
court is required to hold a hearing and, after consideration of the probation report and "any other"
relevant information, determine whether the defendant should be diverted. (§§ 1000.2; 1000.8;
1001.53.) Upon satisfactory completion of the program, the charges are dismissed (§§ 1000.3;
1000.9; 1001.7), and the arrest is deemed not to have occurred (§§ 1001.9; 1001.55).

               We perceive nothing expressed or implied in this statutory scheme, or in any statutory
or constitutional right of the defendant, which would require as a matter of law the attendance of a
public prosecutor at all diversion hearings. Again, therefore, these provisions are in agreement with
the views expressed in Kottmeier and our interpretation of Government Code section 26500.

                It is emphasized in this regard that we are not concerned for purposes of this opinion
with a serious felony trial referred to in Kottmeier or with the circumstances of a particular case, but
with a local court rule compelling the attendance of a prosecutor at all arraignment, bail, and
diversion proceedings. Manifestly, such a court rule would supersede the discretion of the district
attorney respecting the distribution of limited personnel resources (cf. Taliaferro v. Locke (1960)
182 Cal.App.2d 752, 756), conceivably impairing attendance at other critical proceedings including
serious felony trials (People ex rel Kottmeier v. Municipal Court, supra, 220 Cal.App.3d at 611).

                It is, of course, well settled that once 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 and subject to the supervision of the court. (People v. Superior Court (Greer) (1977)
19 Cal.3d 255, 265.) Further, every court has the power to control, in the furtherance of justice, the
conduct of all persons in any manner connected with a judicial proceeding before it, in every matter
pertaining thereto. (Code Civ. Proc., § 128, subd. (a)(5).)

               Clearly, however, this judicial power is not without limitation (Hays v. Superior
Court (1940) 16 Cal.2d 260, 264), and would not extend, for example, to an order compelling a
prosecutor to appear in all cases of a particular kind. As stated in People ex rel Kottmeier v.
Municipal Court, supra, 220 Cal.App.3d at 610:

                 "While a court unquestionably has the power to enforce an attorney's duty to
        appear where a commitment to do so has been made (see In re Stanley (1981) 114
        Cal.App.3d 588, 591), the remedy is less certain where the district attorney simply
        declines to personally appear in a class of cases. Thus, we think the judgment by the
        superior court, which forbade any attempt to compel the attendance of a deputy
        district attorney, was correct."

                                                    5.                                              91-503

                 Hence, the court in Kottmeier found no authority for a court rule compelling
attendance by a deputy district attorney at infraction hearings and therefore enjoined the rule's
enforcement, either directly (by contempt citation) or indirectly (by dismissal of cases where no
prosecutor was present). In the present context, we find no such authority, and reach a similar result
based upon the Kottmeier analysis and the statutory discretion of public prosecutors to conduct
prosecutions. Simply put, the proposed rule goes too far in allocating prosecutorial resources where
a district attorney might reasonably consider that his or her staff is "understaffed and overworked."
(People ex rel. Kottmeier v. Municipal Court, supra, 220 Cal.App.3d at 611.) It does not reflect the
court and district attorney's "joint interest in both the smooth functioning of the system and the goal
of achieving justice." (Ibid.; fn. omitted.)

                It is concluded that a municipal court rule may not require the attendance of a deputy
district attorney at all arraignment proceedings, applications for bail, and hearings on diversion
eligibility.

                                              *****




                                                  6.                                           91-503

