
    Appellate Department, Superior Court, Los Angeles
    [Crim. A. No. 19077.
    Apr. 7, 1982.]
    THE PEOPLE, Plaintiff and Appellant, v. DAVID J. MOULTON, Defendant and Respondent.
    
      Counsel
    Ira Reiner, City Attorney, Jack L. Brown, Ray L. Hart and Greg Wolff, Deputy City Attorneys, for Plaintiff and Appellant.
    Wilbur F. Littlefield, Public Defender, Dennis A. Fischer, Ilona Peltyn and Melissa Hill, Deputy Public Defenders, for Defendant and Respondent.
   Opinion

FOSTER, Acting P. J.

By a misdemeanor complaint, David J. Moulton was charged with violating Penal Code section 487, subdivision 1 (grand theft). On defendant’s motion, pursuant to sections 1377 and 1378 of the Penal Code, the trial judge ordered all proceedings stayed and defendant discharged. The People appeal from the order.

When the case was initially called for trial on February 11, 1981, defendant moved “for civil compromise pursuant to 1377-1378.” Although we have not been provided with a transcript of the proceedings on that date, from remarks made by the trial judge during a later hearing on the same motion, it appears that Ms. Peltyn, counsel for defendant, advised the court that “Miss Dultz had been paid and did wish to drop the charges against Mr. Moulton.” Mr. Horowitz, the deputy city attorney prosecuting the action, was not in the courtroom, and the city attorney’s file did not disclose the status of the case. A different deputy (Ms. De La Garza) was summoned and told the court that Miss Dultz had agreed to testify if called. In the presence of the judge Ms. Peltyn then telephoned Miss Dultz. Statements made by Ms. Peltyn in the course" of the conversation appeared to the judge to bear out the willingness of Miss Dultz to drop the charges. A subsequent attempt to recontact Miss Dultz for a conference call, in which she, Ms. Peltyn, the deputy city attorney, and the judge might participate, was unsuccessful. The judge continued the hearing to February 23, 1981, and advised Ms. Peltyn that she should have Miss Dultz either come into court or give a declaration under penalty of perjury that she had received satisfaction and was agreeable to dropping the charge.

At the continued hearing, counsel for defendant presented to the court a letter on the stationery of the public defender’s office, signed under penalty of perjury by Linda Dultz, acknowledging that Miss Dultz had received full satisfaction and wished to drop all charges against Moulton. The deputy city attorney objected on two grounds. First, he argued that because the charge against Moulton was an offense punishable as either a felony or a misdemeanor, commonly known as a “wobbler,” of necessity it is one committed with “an intent to commit a felony” and therefore excluded by subdivision 3 of section 1377 from the class of offenses subject to civil compromise. Secondly, he urged that since Miss Dultz had not appeared in court, but had only sent a letter, the procedural requirements of section 1378 had not been met.

Responding to the second ground of objection, the trial judge recited the history of events that had occurred at the prior hearing, commenting that “it would not be fair to bring her into court if she would be agreeable to drop the charges and just be agreeable to say it. .. . I think the letter in the context of the history is adequate to meet that requirement of the statute, that the victim has indicated the satisfaction and the desire not to proceed against the defendant.”

As to the former ground, the judge stated: “. . . where they [the People] have filed the case as a misdemeanor, they have by their action taken out of the case the question of whether it was done with felonious intent. They have said this is a crime in which the amount of money was by happenstance.” Subsequently, when the deputy city attorney sought to argue “the factual picture for the record,” the trial judge interrupted him, commenting “.. . I don’t want to go into the underlying facts. I think there is only one relevant underlying fact, and that is that this is a case which came into this courtroom as a misdemeanor filing.”

On appeal the People renew their contention made in the trial court that an offense which by definition is punishable alternatively as a felony or misdemeanor is conclusively established as one committed “with an intent to commit a felony.” In response, defendant points to section 17 of the Penal Code which provides that a crime punishable as either a felony or a misdemeanor “. is a misdemeanor for all purposes . .. [w]hen the prosecuting attorney files in a court having jurisdiction over misdemeanor offenses a complaint specifying that the offense is a misdemeanor. ...”(§ 17, subd. (b)(4).) We believe that neither the fact that the charge might be filed as a felony or a misdemeanor nor the prosecutor’s decision to file a misdemeanor complaint controls the decision of whether the offense is excluded from civil compromise as an offense committed with felonious intent.

In People v. Strut (1975) 49 Cal.App.3d Supp.l [122 Cal.Rptr. 374], defendant was charged by a felony complaint with a violation of Welfare and Institutions Code section 11483, an offense punishable as either a felony or a misdemeanor. At the preliminary hearing, the trial judge advised the defendant that he would allow a civil compromise if defendant would make restitution. The judge thereupon reduced the charge to a misdemeanor and continued the hearing to enable defendant to raise the funds. On appeal, an order dismissing the action was reversed by the Appellate Department of the Superior Court for the County of San Mateo, the court stating: “Penal Code section 1377, subdivision 3, provides that an act which constitutes a misdemeanor may nevertheless not be compromised if that act was committed ‘with an intent to commit a felony.’ Welfare and Institutions Code section 11483 was clearly charged as a felony and, although reduction of that charge pursuant to Penal Code section 17 may have a direct impact on the sentence to be imposed on conviction, it arguably has no impact whatsoever upon the intent with which the act was committed. Since the act herein complained of was in fact a felony, the intent to commit that act may or may not have been felonious. If it were felonious, Penal Code section 1377, subdivision 3, would appear to bar any compromise of the offense. In any case, the question is one of fact, and the compromise of the offense as permitted by the trial court clearly denied the People of their right to a trial on that critical preliminary issue.” (49 Cal.App.3d Supp., at p. 4.)

We agree with the court in Strut that the prosecutor’s decision to file a charge as a misdemeanor has little if any relationship to the question of whether defendant in the commission of a crime intended “to commit a felony.” Many factors, such as the age of the defendant, his prior criminal record, problems of proof and office filing policies may enter into such a decision.

We agree also that the issue of whether defendant had such intention is a factual one to be resolved at a hearing in which both the People and the defendant have a right to present evidence. Thus, in the present case, the trial judge’s refusal to permit inquiry into “the underlying facts” foreclosed such a hearing and was error.

A more difficult question, however, is the test the trial judge should apply in determining if an offense was committed “with an intent to commit a felony.” Our research discloses that the quoted phrase has appeared without change in the California civil compromise statutes and their predecessor New York statutes for nearly 170 years and long antedates the more precise distinctions between felonies and misdemeanors appearing in section 17 of the California Penal Code. In its original application, the phrase simply connoted a distinction between minor offenses, as to which the policy of the law favored civil compromise, and more serious ones, the compromising of which would leave the purposes of the criminal law unvindicated.

All the statutes authorizing civil compromise of criminal actions trace their origins to a New York statute in effect in 1813, providing:

‘“That in all cases where a person shall, on the complaint of another, be bound by recognisance to appear, or shall, for want of surety, be committed, or shall be indicted for an assault and battery, or other misdemeanor, to the injury and damage of the party complaining, and not charged to have been done riotously or with intent to commit a felony, or not being an infamous crime, and for which there shall also be remedy by civil action, if the party complaining shall appear before the magistrate who may have taken the recognisance, or made the commitment, or before the court in which the indictment shall be, and acknowledge to have received satisfaction for such injury and damage, it shall be lawful for the magistrate in his discretion to discharge the recognisance, &c. or for the court also in their discretion, to order a nolle prosequi to be entered on the indictment,’ ...” (1 N.Y. R. L. (1813) p. 499, § 19.)

The phrase “with intent to commit a felony” was included in the statute when it was recast as sections 663 to 666 of the New York Code of Criminal Procedure in 1849. The wording of these sections, in turn, was adopted almost verbatim as sections 724-727 of the California Criminal Practice Act of 1850 (Stats. 1850, p. 330) and as sections 675-678 of the Criminal Practice Act of 1851. (Stats. 1851, p. 288.) Again, when the Penal Code was enacted in 1872, these sections from the practice act were included as part of the Penal Code, with the change being a renumbering as the present sections 1377-1379. In none of the available legislative materials is there any indication of a precise meaning for the phrase “with intent to commit a felony” which has remained unchanged throughout all enactments.

John Gilmore’s Case (1817) 2 N.Y. City Hall Rec. 39, was a decision arising under the original statute. There defendant had been indicted upon a misdemeanor charge of assault and battery. The evidence disclosed that he had thrown a “strong acid substance” on the clothing of two women, burning the skin of one of them. Before the commencement of the prosecution’s case, counsel for defendant moved the court to arrest proceedings and discharge defendant upon a showing that his employer had agreed to reimburse both the victim and her companion for the damage to their clothing. The trial judge denied the motion, and on appeal a judgment of conviction was affirmed. The court noted that in England the offense of throwing acid upon another had been a felony. It approved the observations of the trial judge upon imposing a fine of $50 “that the offense of which he had been convicted was atrocious in its nature, and his poverty alone, had exempted him from a heavier fine.”

The meanings of “felony,” “intent to commit a felony” and “felonious intent” are issues the courts have grappled with for many years. (E.g., In re Donegan (1940) 282 N.Y. 285 [26 N.E.2d 260, 261-262]; People v. Moore (1885 N.Y.) 37 Hun. 84, 93-94 [“‘Felonious’ is defined by Webster to be ‘malignant, malicious, villainous, traiterous, perfidious.’ Felonious intent, when used in penal statutes, means criminal intent, and criminal intent is an intent to deprive or defraud the true owner of his property.”]) In short, the language used defies precise definition. A more fruitful approach is to construe such language in light of the purpose of civil compromise statutes.

In most instances, the civil and criminal law operate independently of one another so that resolution of a victim’s civil rights and remedies has no effect upon criminal prosecution. (15A Am.Jur.2d 798, Compromise and Settlement, § 26.) Indeed, it is generally considered to be a criminal offense to condition settlement of a civil claim upon nonprosecution of a criminal action. (Pen. Code, § 153; Bowyer v. Burgess (1960) 54 Cal.2d 97, 100 [4 Cal.Rptr. 521, 351 P.2d 793].) It is only when there has been compliance with a civil compromise statute authorizing a settlement under the supervision of the court that such a disposition is permitted. (See Annot. (1972) 42 A.L.R.3d 315 et seq.)

The policy underlying compromise statutes was explained by the New York Commissioners on Practice and Pleading in 1849 as follows: “‘“There are many cases, which are technically public offences, but which are in reality rather of a private than a public nature, and where the public interests are better promoted by checking than by encouraging criminal prosecutions. Of this class are libels, and simple assaults and batteries; or those which according to section 731 [enacted as section 663], are not committed by or upon an officer of justice, while in the execution of the duties of his office, or riotously, or with an intent to commit a felony. With these exceptions, cases of this nature have by the policy of our statutes, always been considered fit subjects of compromise: 2 R.S. 3d ed. 815, 816, sec. 68-71; 1 R.L. of 1813, p. 499, sec. 19; a policy which has been carried by the courts, still further than the terms of the statute.” See Report of Commissioners on Practice and Pleadings, p. 339, submitted December 31, 1849.’ Historical Note, N.Y. Code of Criminal Procedure, § 663.”

When the California Criminal Practice Act was qnacted in the following year, it distinguished between felonies and misdemeanors solely on the basis of whether the offense called for incarceration in the state prison or a county jail as punishment. Section 17 of the Penal Code, permitting classification of some offenses as a felony or a misdemeanor according to the sentence imposed or the charging decision of the prosecutor followed 20 years later with enactment of the Penal Code. Yet, the California civil compromise statutes and their predecessors have always been restricted in application to “misdemeanors” and have always contained an exception for offenses commited “with intent to commit a felony.” If we were to assume that the Legislature had in mind a strict definition of “felony,” so that civil compromise was precluded only if defendant in the commission of a misdemeanor had the intent to commit an offense for which he might be sent to prison, we would expand the availability of civil compromise far beyond “cases, which are technically public offences, but which are in reality rather of a private than a public nature, and where the public interests are better promoted by checking than by encouraging criminal prosecution.”

We believe that when the 1813 New York Legislature incorporated the quoted phrase as a limitation upon the right to compromise a criminal action by a civil settlement, it used the word “felony” in the sense of distinguishing between misdemeanor offenses subject to compromise and the more serious ones, the compromise of which would be contrary to the purpose of the criminal law. Such definition preserves-the underlying purpose of the statute.

Penal Code section 1378 gives the trial judge discretion to dismiss a misdemeanor criminal prosecution under the circumstances permitted by section 1377. Significant issues to be considered in the exercise of such discretion include the following:

1. Is the civil injury coextensive with the criminal violation?

In People v. O’Rear (1963) 220 Cal.App.2d Supp. 927 [34 Cal.Rptr. 61], defendant was charged with a violation of Vehicle Code section 20002, subdivision (a) (failure of a driver involved in an accident to stop at the scene). Defendant entered into a settlement of the damage claims with the other driver and obtained in the criminal action a dismissal of the complaint pursuant to Penal Code sections 1377 and 1378. In reversing the order of dismissal, the court stated: “With this historical background, it appears to us that the Legislature had no intention of authorizing the compounding and dismissal of every misdemeanor in which there was some incidental damage to a private citizen. We are of the opinion that the Legislature intended to include those misdemeanors in which by their very nature there is an overlapping of the civil remedy and the public remedy by way of prosecution for a crime. Thus in the case of an assault and battery since by its very definition a battery is a wilful and unlawful use of force or violence upon the person of another (Pen. Code, § 242), the person injured would in almost every case have a civil action for damages. Similarily, since a theft is the unlawful taking of the property of another, the civil remedy of damages for conversion would almost always exist. Contrast the crime of excessive speed in an automobile. The crime may be committed without injury to the person or property of another. Or such injury may be the proximate result of the violation of the law which constitutes the crime. We do not believe that the Legislature intended to rest this important matter of public policy upon the happenstance that in any particular case a private citizen might or might not suffer personal injury or property damage. The right to compromise the offense of speeding in a vehicle should not depend upon this incidental matter. [Par.] Neither in our opinion did the Legislature intend that the right to compromise or compound the offense of hit and run with property damage defined in Vehicle Code section 20002, subdivision (a), should depend upon whether in a particular case the offender may be subject to a civil remedy for damages. He may or may not be negligent, and still commit the offense.” (220 Cal.App.2d Supp. 930-931; State ex rel. Schafer v. Fenton (1969) 104 Ariz. 160 [449 P.2d 939, 941, 42 A.L.R.3d 311] [operation of an aircraft resulting in damage upon a crash landing: held; injury to the property owner not the equivalent of the public injury from intoxicated operation of aircraft]; cf. Childs v. State (1968) 118 Ga.App. 706 [165 S.E.2d 577] [writing of check for insufficient funds held appropriate subject of civil compromise].)

In the present case, the offense charged was theft, but we have only fragmentary information about it. From remarks of counsel in argument in the trial court, it appears that defendant and another suspect were involved in the circumstance of the offense allegedly resulting in the loss of $1,050 in money and jewelry. The alleged victim was agreeable to compromising with defendant and dismissing charges against him but not the other suspect. Under these circumstances, it is unclear whether the private remedy overlaps the public injury.

2. Are the circumstances such that through private settlement the injury to the public is fully vindicated?

In Commonwealth v. Heckman (1934) 113 Pa.Super. 70 [172 A. 28] the secretary-treasurer of a trust company misappropriated pledged securities and used them as collateral for a loan to the trust company. He was prosecuted for embezzlement and sought to settle the claims of the owner of the securities by rehypothecating them. He then attempted to arrest the trial and dismiss the proceeding under Pennsylvania’s civil compromise statute. Appealing from a judgment of conviction, he contended that the trial judge had erred in denying his motions. The superior court found that it was doubtful that he had followed the correct statutory procedure, but further commented: “In a criminal case involving such charges as we have here, the private wrong does not overshadow the offense against the public. The consequences of permitting bank officers to repledge the securities of borrowers without their consent are far-reaching and involve the commission of such a crime as is forbidden by public policy, and fraudulent conversion of securities without the consent of the owner is more than malum prohibitum. The business of banking is of such public interest that the people of the state are affected by such practices as are proscribed by these acts of assembly.” (172 A. at p. 30; see also, Holsey v. State (1908) 4 Ga.App. 453 [61 S.E. 836] [“This ruling is to be taken, however, with the understanding that the principle is applicable only in that class of cases where the offense involves no crime against society or good morals, but relates solely to the redressing of private property wrongs.”].)

The seriousness of the injury and the circumstances of the commission of the offense are both matters to be considered in determining whether a civil satisfaction adequately vindicates the public’s interest in enforcing its criminal laws. In the case before us, we have no information concerning these matters and none was before the trial court.

3. Is the victim’s settlement agreement a completely voluntary one?

Section 1378 of the Penal Code permits the court to accept a civil compromise “[i]f the person injured appears before the court in which the action is pending at any time before trial, and acknowledges that he has received satisfaction for the injury ... . ” By requiring personal presence of the victim or in lieu thereof other trustworthy evidence, the section affords the court the opportunity to assure itself that satisfaction is complete or a settlement voluntary. Instances in which the victim has been subjected to coercion to dismiss charges are not without precedent.

In John Gilmore’s Case, supra, it developed that after defendant’s employer had agreed to settle the victims’ civil claims, “that the defendant had threatened these women, that if they persisted in the prosecution, he would do them greater injury.” (See also, State v. Hunter (1859) 14 La.Ann. 71, 72 [“In such cases, where the injured party voluntarily comes forward and declares that he is satisfied, and desires the prosecution to be dropped, the public justice gains nothing by a further prosecution, and the law permits the District Attorney to enter the nolie prosequi. On the other hand, the production of a written compromise of an assault and battery by the bully, and the terror of the neighborhood, might be an aggravation of the public injury and a just cause for a more rigorous prosecution in order that there might be an adequate vindiction of the laws.”].)

The order of dismissal is reversed with directions to conduct such further proceedings in accordance with this opinion as may be required.

Rothman, J., concurred.

JONES, J.,

Concurring. — Although I respect the scholarly presentation written by my colleague, I am of the opinion that a more simple test is called for in determining whether “an intent to commit a felony” exists as a bar to the compromise statutes (Pen. Code, §§ 1377-1378). “Felony” is defined in Penal Code section 17 as “a crime which is punishable with death or by imprisonment in the state prison.” This definition, with a minor addition, has been a part of the Penal Code from its inception in 1872, and the Legislature presumably was aware of it when Penal Code sections 1377-1378 were also added to the code at that time. Accordingly, the question to be decided is whether an act now constituting a misdemeanor (because it was filed as such in the prosecutor’s discretion, Pen. Code, § 17, subd. (b)(4)) was nevertheless done with the intent to commit a felony; that is, by definition an offense punishable by imprisonment in the state prison. If the act was committed with that intent the compromise otherwise permissible by Penal Code, sections 1377-1378 is barred. This test would appear to have been specifically devised to apply to alternative felony misdemeanors (“wobblers”). Ordinarily, of course, the question is one of fact calling for a hearing, and the trial court in the case before us was in error in not allowing the People to present evidence on the subject.

I agree that other factors enumerated in Judge Foster’s opinion are of importance as well, but I do not believe that they are relevant on the issue of whether an act charged as a misdemeanor was nevertheless done with the intent to commit a felony. 
      
      Section 1377: “When the person injured by an act constituting a misdemeanor has a remedy by a civil action, the offense may be compromised as provided in the next section, except when it is committed: 1. By or upon an officer of justice, while in the execution of the duties of his office; 2. Riotously; 3. With an intent to commit a felony; 4. In violation of any court order as described in Section 273.6, unless the offense charged is the first such offense committed by the defendant against the family or household member under Section 273.6.”
      Section 1378: “If the person injured appears before the court in which the action is pending at any time before trial, and acknowledges that he has received satisfaction for the injury, the court may, in its discretion, on payment of the costs incurred, order all proceedings to be stayed upon the prosecution, and the defendant to be discharged therefrom: but in such case the reasons for the order must be set forth therein, and entered on the minutes. The order is a bar to another prosecution for the same offense.”
     
      
      The complaint does not name the victim of the alleged theft, but from the colloquy among the court and counsel, it appears to have been she.
     
      
      The record is unclear as to whether Ms. De La Garza was also present during the telephone conversation.
     
      
      A violation of Penal Code section 487 is “... punishable by imprisonment 'in the county jail for not more than one year or in the state prison.” (Pen. Code, § 489.)
     
      
      “[By Mr. Horowitz] Apparently the occurrence of the event was the 13th of December in 1980. Allegedly cash and jewelry was stolen allegedly valued at $1,050. The defendant is 20 years old allegedly.”
     
      
      
        State v. Garouette (1964) 95 Ariz. 234 [388 P.2d 809, 811] lists as states having such statutes Alaska, Arizona, California, Georgia, Louisiana, Montana, Oregon, Pennsylvania, Virginia and Wisconsin. New York no longer has such a statute.
     
      
      “At early common law the term ‘felony’ was applied to describe the more serious offenses cognizable in the royal courts, conviction for which entailed forfeiture of life, limb and chattels and escheat of lands to the felon’s lord after a year and a day in the king’s hands. 2 Holdsworth, History of English Law, 357, 358. Subsequently, however, the classification was so greatly enlarged (4 Holdsworth, op. cit. supra, 501-512), that many offenses not involving moral turpitude were included therein (e.g., fishing in a private pond by night and breaking the head of a private pond by night or day, 31 Henry VIII, ch. 2; witchcraft, 5 Eliz. ch. 16; 1 Jac. I, ch. 12; casting the queen’s nativity, 23 Eliz. ch. 2; the failure of Egyptians to leave the country within a specified time, 1, 2 Philip & Mary, ch. 4). The reception of common law in this country and the development of numerous sovereign jurisdictions resulted in many instances in complete reclassification of crimes and punishments. Naturally, the system adopted by the various legislative bodies did not coincide. Consequently, although there is in effect unity in the condemnation by the use of the term ‘felony’ of certain basic offenses against society, e.g., murder, robbery, arson, etc., generally the meaning of the term varies with the jurisdiction. As was said in Matter of Biggs, 52 Or. 433, at page 435, 436, 97 P. 713, at page 714: ‘Neither the words “felony” or “misdemeanor” of themselves have any exactness or precision of definition.*** the word “felony” is of itself, as said by Mr. Chief Justice Agnew, “incapable of any definition, and is descriptive of no offense.” Lynch v. Commonwealth, 88 Pa. 189-192, 32 Am.Rep. 445. It is a matter of statutory provision, and what may be a felony in one jurisdiction may be a misdemean- or in another, and vice versa, and in some jurisdictions crimes may not be classified at ajj ***»”
     
      
      Section 1377 has also excluded since its inception misdemeanors committed “upon an officer of justice,” or “riotously.” In 1979, section 1377 was amended to add subdivision 4, in harmony with the newly enacted domestic violence legislation. (Stats. 1979, ch. 795, § 13.)
     
      
      As originally enacted in 1872, Penal Code section 17 provided: “A felony is a crime which is, or may be, punishable with death, or by imprisonment in the State Prison. Every other crime is a misdemeanor.”
      In 1874, the words “or may be” were deleted and a provision was added for the first time that an offense would be'deemed a misdemeanor for all purposes after a jail sentence was imposed, where alternate state prison/county jail punishment was provided.
     