Filed: 11/19/15

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

DOUGLAS LEE McGOWAN,

Defendant and Appellant.

 B263026

(Los Angeles County Super. Ct. 

No. 4WA22795 and App. Div. No. 

BR051696)

APPEAL from a judgment of the Appellate Division of the Superior Court of Los 

Angeles County. Sanjay Kumar, Patti Jo McKay and Barbara R. Johnson, Judges. 

Reversed.

Marsha Jones Moutrie, City Attorney, Terry L. White, Chief Deputy City 

Attorney, Jenna K. Grigsby, Deputy City Attorney, for Plaintiff and Appellant.

Ronald L. Brown, Public Defender, Albert J. Menaster, Head Deputy Public 

Defender, Stephanie Choi, Deputy Public Defender, for Defendant and Appellant. 

_____________________
2

Penal Code section 9911 permits an in-custody defendant to require the arraigning 

magistrate to determine whether there is probable cause to believe the defendant 

committed a public offense. (§ 991, subd. (a).) If the magistrate finds no such probable 

cause, the defendant is entitled to dismissal of the complaint. (§ 991, subd. (d).) The 

issue raised in this appeal is whether section 991 vests the trial court with authority to 

dismiss only some of the charges for lack of probable cause, or whether it must dismiss 

the complaint in its entirety or not at all. We conclude that section 991 permits the court 

to dismiss individual charges from the complaint.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant Douglas Lee McGowan was arrested at 1:30 a.m. on May 9, 2014. At 

the time, he was wrapped in a blanket and seated underneath the Santa Monica Pier. He 

was surrounded by various personal items, including two milk crates. The People filed a 

complaint charging him with (1) camping in a prohibited public place (Santa Monica 

Mun. Code, § 4.08.095, subd. (a)), (2) possession of a milk crate (§ 565), and (3) loitering 

under the Santa Monica Pier (Santa Monica Mun. Code, § 3.36.100). The defense filed a 

motion to dismiss all charges pursuant to section 991. At argument, the trial court 

ordered further briefing on whether it had the authority to dismiss only two of the three 

counts. It ultimately dismissed counts one and three, finding probable cause to support 

the charge in count two only, possession of a milk crate. In a published decision, the 

Appellate Division of the Superior Court of Los Angeles County reversed, holding that 

section 991 does not vest the trial court with authority to dismiss anything less than the 

entire complaint. We ordered jurisdiction of the matter transferred to this court pursuant 

to our authority under California Rules of Court, rule 8.1002.

 

1 All further statutory references are to the Penal Code, unless otherwise specified.
3

At oral argument, the parties informed the court that the charges against 

McGowan have been resolved, but that he remained in custody for some time pending 

resolution, as he was unable to post bond. Therefore, this matter has been rendered moot. 

However, “[w]here questions of general public concern are involved, particularly in the 

area of the supervision of the administration of criminal justice, we may reject mootness 

as a bar to a decision on the merits.” (In re Walters (1975) 15 Cal.3d 738, 744 (Walters); 

see In re Fluery (1967) 67 Cal.2d 600, 601.)

DISCUSSION

A. Standard of Review and Rules of Statutory Construction

On appeal, questions of law and statutory interpretation are reviewed de novo. 

(People v. Kurtenbach (2012) 204 Cal.App.4th 1264, 1276.) “‘Under settled canons of 

statutory construction, in construing a statute we ascertain the Legislature’s intent in 

order to effectuate the law’s purpose. [Citation.] We must look to the statute’s words 

and give them their usual and ordinary meaning. [Citation.] The statute’s plain meaning 

controls the court’s interpretation unless its words are ambiguous.’ [Citation].” (People 

v. Robinson (2010) 47 Cal.4th 1104, 1138.) “If, however, the language supports more 

than one reasonable construction, we may consider ‘a variety of extrinsic aids, including 

the ostensible objects to be achieved, the evils to be remedied, the legislative history, 

public policy, contemporaneous administrative construction, and the statutory scheme of 

which the statute is a part.’ [Citation.] Using these extrinsic aids, we ‘select the 

construction that comports most closely with the apparent intent of the Legislature, with a 

view to promoting rather than defeating the general purpose of the statute, and avoid an 

interpretation that would lead to absurd consequences.’ [Citation.]” (People v. Sinohui

(2002) 28 Cal.4th 205, 211–212.)
4

B. Penal Code Section 991

Section 991 states in part: “(a) If the defendant is in custody at the time he 

appears before the magistrate for arraignment and, if the public offense is a misdemeanor 

to which the defendant has pleaded not guilty, the magistrate, on motion of counsel for 

the defendant or the defendant, shall determine whether there is probable cause to believe 

that a public offense has been committed and that the defendant is guilty thereof. [¶] . . . 

[¶] . . . (d) If, after examining these documents, the court determines that there exists 

probable cause to believe that the defendant has committed the offense charged in the 

complaint, it shall set the matter for trial. [¶] If the court determines that no such 

probable cause exists, it shall dismiss the complaint and discharge the defendant. [¶] (e) 

Within 15 days of the dismissal of a complaint pursuant to this section the prosecution 

may refile the complaint.” 

1. Plain Meaning

The People argue that the statute unambiguously authorizes the court to dismiss 

“the complaint,” not individual counts, and not anything short of the entire complaint. 

We disagree. The singular term “the complaint” is not defined, and throughout the Penal 

Code, “the singular number includes the plural, and the plural the singular.” (§ 7.) The 

Supreme Court’s interpretation of other singular terms — such as “an action” or “the 

indictment or information” — to permit dismissal of individual counts in related Penal 

Code provisions is further evidence that section 991’s use of the singular term “the 

complaint” is not unambiguously dispositive. 

Section 1385, subdivision (a) permits a trial court to dismiss “an action” in 

furtherance of justice. The statute is silent as to the dismissal of individual charges in an 

action. Nonetheless, in interpreting this provision, the Supreme Court has stated that 

“[t]he authority to dismiss the whole includes, of course, the power to dismiss or ‘strike 

out’ a part. [Citation.]” (People v. Burke (1956) 47 Cal.2d 45, 51, disapproved on other 
5

grounds in People v. Sidener (1962) 58 Cal.2d 645, 647.) To this end, the high court has 

“consistently interpreted ‘action’ to mean the ‘individual charges and allegations in a 

criminal action’ [citations] . . .” (In re Varnell (2003) 30 Cal.4th 1132, 1137; see also 

People v. Casper (2004) 33 Cal.4th 38, 45 [“Because ‘[t]he authority to dismiss the 

whole includes, of course, the power to dismiss or “strike out” a part’ [citation], the trial 

court’s power under section 1385 to dismiss the entire action necessarily includes the 

power to dismiss a part of the action”]; People v. Superior Court (Romero) (1996) 13 

Cal.4th 497, 508 [“we have construed section 1385(a) as permitting a judge to dismiss 

not only an entire case, but also a part thereof”]; People v. Campos (2011) 196 

Cal.App.4th 438, 450 [“This power to dismiss [under section 1385] extends to the entire 

action as well as to individual charges and allegations in the action”].)

Section 1385 is not the only such example. While section 991 controls probable 

cause determinations in misdemeanor cases, section 995 governs probable cause 

determinations in felony cases. Like section 991, section 995 employs the singular form 

and provides that “the indictment or information shall be set aside” if the trial court 

concludes a defendant was indicted or committed without probable cause. (§ 995, subd. 

(a).) It, too, has been interpreted to permit the setting aside of a portion of the indictment 

or information. (See People v. Superior Court (Mendella) (1983) 33 Cal.3d 754, 761, fn. 

6 (Mendella) [“It is, of course, well settled that a defendant’s challenge under section 995 

need not be directed to the entire information but may instead attack only portions 

thereof”], superseded by statute on other grounds as stated in In re Javon B. (1993) 6 

Cal.4th 801, 814, fn. 8; People v. Fraijo (1977) 78 Cal.App.3d 977, 981 [noting that 

section 995 has been interpreted as permitting the dismissal of a count or counts that are 

part of a broader information, even though the statute does not expressly authorize setting 

aside less than the entire information].) 

That section 991 deals with in-custody defendants, while sections 995 and 1385 

deal with both in-custody and out-of-custody defendants, does not render section 991’s 

words, “the complaint,” unambiguous. In fact, the in-custody versus out-of-custody 

distinction is not relevant to an ambiguity determination. And if the People were correct 
6

that the term “the complaint” necessarily and unambiguously means that only an entire 

complaint may be dismissed, then the long line of cases interpreting sections 995 and 

1385 would be wrong. We decline to reach that conclusion. 

Furthermore, “it is well settled that the statutes and codes blend into each other, 

and are to be regarded as constituting but a single statute . . . . Accordingly, statutes 

which are in pari materia should be read together and harmonized if possible.” (People 

v. Squier (1993) 15 Cal.App.4th 235, 240.) As evidenced in the legislative history 

discussed below, the Legislature intended for sections 991 and 995 to serve analogous 

purposes (to weed out unsupported charges prior to trial) in the misdemeanor and felony 

contexts. We therefore construe the sections harmoniously. 

2. Legislative History

Where the statutory language is ambiguous, we look to extrinsic aids such as the 

legislative history and public policy to inform our interpretation of the statutory language. 

(People v. Sinohui, supra, 28 Cal.4th 205 at p. 212.) The appellate division assumed 

section 991 was enacted for the sole purpose of codifying In re Walters, supra, 15 Cal.3d 

738. In fact, section 991 goes well beyond Walters.

Undoubtedly, section 991 was enacted as a partial response to Walters, which 

followed the United States Supreme Court decision in Gerstein v. Pugh (1975) 420 U.S. 

103 (Gerstein). Gerstein held that the Fourth Amendment requires a “timely judicial 

determination of probable cause as a prerequisite to detention.” (Id. at. p. 126.) This was 

because pretrial confinement was a significant restraint on liberty and could not be 

imposed without a judicial determination of probable cause. (Id. at p. 114.) The court 

noted that even pretrial release could be accompanied by burdensome conditions that 

amounted to a significant restraint on liberty. (Ibid.)

Following Gerstein, the Supreme Court held in Walters that “a judicial 

determination of probable cause to hold an arrestee for trial on a misdemeanor charge 

must be made if the arrestee requests that determination, unless pending trial he is 
7

released on his own recognizance.” (Walters, supra, 15 Cal.3d at pp. 742-743, fn. 

omitted.) Based on an analysis of Walters and Gerstein, the appellate division concluded 

that section 991’s sole purpose was to implement Gerstein’s constitutional requirement 

that a magistrate promptly determine if there is probable cause to believe the defendant 

committed “a crime” before forcing him or her to await trial while in custody. According 

to the appellate division, this goal requires the trial court to evaluate the complaint as a 

whole to determine whether there is probable cause to believe the defendant committed 

any of the charged crimes. 

However, it is also clear the Legislature intended to, and did, go beyond merely 

parroting and codifying Walters. Unlike Walters, section 991 (a) requires dismissal of 

the complaint along with discharge of the defendant if there is no probable cause to 

believe the defendant committed the misdemeanor, (b) requires the court to set the matter 

for trial if it determines probable cause exists, (c) provides the prosecution may refile the 

complaint within 15 days of dismissal, (d) bars further prosecution upon a second 

dismissal, and (e) requires the court to consider police reports or the record of citizen 

complaints, but not live witnesses or cross-examination, in determining probable cause. 

(§ 991, subd. (a).) None of these provisions of section 991 are contemplated by Walters.

The legislative history confirms that section 991 was intended to go beyond 

Walters. The provision was enacted October 1, 1980, “to create a means for eliminating 

groundless misdemeanor complaints before a case goes to trial and to codify . . .

Walters.” (Sen. Com. on Judiciary, Analysis of Assem. Bill. No. 2931 (1979-1980 Reg. 

Sess.), as amended May 7, 1980, p. 2.) As such, the purpose of section 991 was twofold: 

(1) to eliminate groundless complaints, and (2) to codify Walters. 

In fact, the legislative history is replete with evidence that section 991 was 

intended not only to codify Walters, but also to weed out groundless charges. The 

Assembly Committee on Criminal Justice’s bill analysis describes the bill’s background 

and purpose as follows: “Persons accused of felony offenses have a right to a hearing 

before being held to answer on the charges. The hearing is to determine whether there is 

reasonable cause to believe a felony has been committed by the defendant. The purpose 
8

of the preliminary hearing is to weed out groundless or unsupported charges (Witkin, 

Ca. Crim. Pro., p. 128). Persons accused of misdemeanors and persons who waive their 

right to a preliminary hearing do not have a right of review of the charges against them 

prior to trial. [¶] . . . [¶] . . . [¶] . . . [¶] . . . [¶] . . . [¶] . . . [¶] . . . 1. Currently there is no 

procedure to weed out groundless misdemeanor complaints prior to trial. Proponents 

argue that this bill would permit the expeditious dismissal of unsupported or frivolous 

charges. Proponents indicate that certain indigents accused of misdemeanors can be in 

custody for 30 days before groundless charges can be weeded out.” (Assem. Com. on 

Criminal Justice, Analysis of Assem. Bill No. 2391 (1979-1980 Reg. Sess.), Apr. 21, 

1980, pp. 1-2, italics added; see also Assem. Com. on Criminal Justice, Analysis of Bill 

No. 2391 (1979-1980 Reg. Sess.), Apr. 28, 1980, pp. 1-2 [same]; Sen. Judiciary Com., 

Analysis of Assem. Bill No. 2931 (1979-1980 Reg. Sess.), July 9, 1980, p. 2 [“Persons 

accused of felony offenses have a right to a hearing before being held to answer on the 

charges. The hearing is to determine whether there is reasonable cause to believe a 

felony has been committed by the defendant. The purpose of the preliminary hearing is 

to weed out groundless or unsupported charges (Witkin, Ca. Crim. Pro., p. 128). Persons 

accused of misdemeanors and persons who waive their right to a preliminary hearing do 

not have a right of review of the charges against them prior to trial. [¶] Currently there is 

no procedure to weed out groundless misdemeanor complaints prior to trial. Proponents 

argue that this bill would permit the expeditious dismissal of unsupported or frivolous 

charges. Proponents indicate that certain indigents accused of misdemeanors can be in 

custody for 30 days before groundless charges can be weeded out.”]; Sen. Democratic 

Caucus, Analysis of Assem. Bill No. 2931 (1979-1980 Reg. Sess.), as amended July 9, 

1980, p. 1 [“Proponents argue that this bill establishes a procedure for the expeditious 

dismissal of unsupported or frivolous charges. They also argue that, under the present 

system, people accused of misdemeanors are in custody for as long as 30 days before 

groundless charges can be ascertained. [¶] Opponents argue that preliminary hearings 

for misdemeanors are unnecessary given existing procedures for challenging probable 
9

cause. Opponents are also concerned that these hearings would only add to court 

congestion”].) 

These legislative analyses evince the Legislature’s desire to create a procedural 

mechanism to “weed out groundless misdemeanor complaints prior to trial” and to 

facilitate the “expeditious dismissal of unsupported or frivolous charges.” The legislative 

history also indicates the Legislature intended that section 991 would serve a function 

similar to that of felony preliminary hearings, which “is to weed out groundless or 

unsupported charges.” (See People v. Plengsangtip (2007) 148 Cal.App.4th 825, 835 

[purpose of a preliminary hearing is to “assure that a person is not detained for a crime 

that was never committed,” and “‘“to weed out groundless or unsupported charges”’”].) 

Thus, throughout the legislative history, the probable cause hearing is referred to 

as “preliminary hearings for misdemeanors.” (See Sen. Democratic Caucus, Analysis of 

Assem. Bill No. 2931 (1985-1986 Reg. Sess.) as amended July 9, 1980, p. 1.) The 

Assembly Committee on Criminal Justice’s analysis of the bill is captioned, “SUBJECT: 

Preliminary Hearing for Misdemeanor Offenses.” (Assem. Com. on Criminal Justice, 

Analysis of Assem. Bill No. 2391 (1979-1980 Reg. Sess.), Apr. 21, 1980, p. 1; see also 

Assem. Com. on Criminal Justice, Analysis of Assem. Bill No. 2391 (1979-1980 Reg. 

Sess.), Apr. 28, 1980, p. 1 [same].) Likewise, the Senate Committee on Judiciary’s 

analysis of the bill is titled, “MISDEMEANORS [¶] -PRELIMINARY HEARINGS-.” 

(Sen. Com. on Judiciary, Analysis of Assem. Bill No. 2391 (1979-1980 Reg. Sess.), as 

amended May 7, 1980, p. 1.) 

In fact, proponents and opponents of the bill alike recognized that the provision 

would establish a right to “preliminary hearings” in misdemeanor cases. (See Los 

Angeles Municipal Judges’ Association, letter to Assemblyman Bill McVittie, Apr. 11, 

1980 [“This bill would establish a preliminary hearing for misdemeanors”]; Cal. District 

Attorney’s Association, letter to Assemblyman Elihu M. Harris, July 17, 1980 [noting 

that the proposed bill “provide[s] an in-custody defendant with [the] right to a 

preliminary hearing where the charged offense is a misdemeanor”]; Los Angeles County 
10

Municipal Court Judges’ Association, letter to Sen. Bob Wilson, June 13, 1980 [“This 

bill would establish a preliminary hearing for misdemeanors”].) 

This terminology makes clear that the Legislature contemplated that section 991 

probable cause hearings would serve a purpose similar to that of preliminary hearings in 

felony cases, i.e., “assure that a person is not detained for a crime that was never 

committed” and “to weed out groundless or unsupported charges.” (People v. 

Plengsangtip, supra, 148 Cal.App.4th at p. 835.) Because sections 991 and 995 were 

meant to serve analogous purposes in the misdemeanor and felony contexts, the rules of 

statutory construction demand that we harmonize the two provisions whenever possible. 

(See People v. Squier (1993) 15 Cal.App.4th 235, 240-241 [“statutes which are in pari 

materia should be read together and harmonized if possible”].) Thus, in keeping with the 

Supreme Court’s conclusion that section 995 permits the setting aside of individual 

charges within a felony indictment or information, we conclude that section 991 permits 

the dismissal of individual charges from a misdemeanor complaint. Certainly, section 

991’s “weeding out” function would be poorly served if the trial court were required to 

analyze misdemeanor complaints as a whole, rather than on a per-charge basis.

Contrary to the People’s position, there is no evidence in the legislative history 

that the Legislature ultimately rejected the proponents’ position that section 991 would 

allow trial courts to “weed out” groundless charges. The most recent evidence of the 

Legislature’s dual intent is found in the analyses by the Senate Democratic Caucus and 

the Senate Republican Caucus. These analyses are dated within two days before the 

Senate voted on the bill. The Senate Democratic Caucus’ analysis states: “Proponents 

argue that this bill establishes a procedure for the expeditious dismissal of unsupported or 

frivolous charges.” (Sen. Democratic Caucus, Analysis of Assem. Bill No. 2931 (1985-

1986 Reg. Sess.), p. 1.) Likewise, the “comments” section of the Senate Republican 

Caucus’ analysis states: “Currently there is no procedure to weed out groundless 

misdemeanor complaints prior to trial. Proponents argue that this bill would permit the 

expeditious dismissal of unsupported or frivolous charges. Proponents indicate that 

certain indigents accused of misdemeanors can be in custody for 30 days before 
11

groundless charges can be weeded out.” (Sen. Republican Caucus, analysis of Assem. 

Bill No. 2931 (1979-1980 Reg. Sess.), p. 2.) 2 The Enrolled Bill Report was prepared by 

the Legal Affairs Department of the Governor’s Office after the bill passed both the 

Senate and the Assembly. It confirms that section 991 was meant to be broader than 

Walters in that it requires the dismissal of charges where probable cause is not 

established. It states: “This bill goes beyond the Walters’ decision and requires that the 

charges be dismissed if probable cause is not established, although the prosecution may 

thereafter refile the complaint within 15 days.” (Governor’s Office, Enrolled Bill Report 

on Assem. Bill No. 2391 (1979-1980 Reg. Sess.), Sept. 15, 1980, p. 1.)

This legislative history belies the appellate division’s holding that “[t]he statute is 

not a mechanism to extricate certain unsupportable charges from an otherwise legitimate 

complaint” but rather “simply an implementation of Gerstein’s constitutional requirement 

that a magistrate promptly determine there is probable cause to believe the defendant 

committed ‘a crime’ before forcing him or her to await trial while in custody.” (People v. 

McGowan (2015) 235 Cal.App.4th Supp. 1, 6.) We disagree with the notion that the 

legislative documents contain “inaccuracies” that somehow suggest the Legislature did 

not intend what it said.3 However, even assuming the legislative history is somehow

 

2

In a May 14, 1980 memo to Assemblyman Elihu Harris from Jim Tucker of the 

ACLU, the ACLU offers its opinion that Assembly Bill 2931 merely codifies Walters. 

However, even this memo notes, in language reminiscent of preliminary hearings, that 

“[t]he bill . . . [permits] the court to screen out those cases for which there is clearly no 

evidence to support the charge.” (Jim Tucker, ACLU, memo to Assemblyman Elihu 

Harris, May 14, 1980.) 

3 The Legislative Counsel’s Digest for Assembly Bill 2931 is confusing and 

provides: “Existing law authorizes the magistrate in misdemeanor cases to ascertain the 

gravity of the offense committed, in case the defendant may be held to answer for a 

higher offense. Existing law does not specifically provide for a determination in 

misdemeanor cases, prior to the filing of an information, of whether there is probable 

cause to believe that a public offense has been committed and that the defendant is guilty 

thereof.” (Legis. Counsel’s Dig., Assem. Bill No. 2931, Mar. 6, 1980.) The first 

sentence applies to felonies, not misdemeanors. The second sentence juxtaposes the first

sentence and is only necessary if the first sentence describes felony procedures. It is 
12

incorrect or ambiguous, we would still be required to interpret section 991 as permitting 

count-by-count dismissals, so as to avoid an absurd consequence.

Taken to its logical conclusion, the appellate division’s all-or-nothing decision 

would result in a situation where a trial court presented with a multi-count complaint 

determines there is no probable cause for all but one of the charges. Under the appellate 

division’s decision, the defendant would be forced to stand trial on all of the charges, 

including the ones for which the court has already determined there is no probable cause. 

Nor is it accurate that the trial court may satisfy its section 991 obligations by examining 

only one charge in a multi-charge complaint. Section 991, subdivision (d) states in part: 

“If, after examining these documents, the court determines that there exists probable 

cause to believe that the defendant has committed the offense charged in the complaint, it 

shall set the matter for trial. [¶] If the court determines that no such probable cause 

exists, it shall dismiss the complaint and discharge the defendant.” This provision 

requires the trial court to determine whether probable cause exists for each offense in the 

complaint. Under the People’s position, the trial court may determine that no probable 

cause exists for one or more of the offenses, but nonetheless set them for trial.4 When 

 

highly unlikely, from a reading of the complete legislative history, that every member of 

the Legislature voting for passage of Assembly Bill 2931, and every lawyer and judge 

who submitted comments, did so under the mistaken belief that misdemeanor and felony 

procedures were somehow conflated or merged because of the Legislative Counsel 

Digest’s comments. Indeed, even the People acknowledge that the errors in the 

Legislative Counsel Digest are irrelevant in terms of the issue presented.

4 The People argue the precise opposite: that it would be absurd to “discharge the 

defendant” (§ 991, subd. (a)) simply because two of three counts are dismissed. 

Wherever possible, we harmonize statutory provisions relating to the same subject, in 

light of the Legislature’s overall purpose. (Industrial Risk Insurers v. Rust Engineering 

Co. (1991) 232 Cal.App.3d 1038, 1042.) Given that one of the purposes behind 

legislative enactment of section 991 was to “weed out groundless misdemeanor 

complaints prior to trial” and to “permit the expeditious dismissal of unsupported or 

frivolous charges” (see, e.g., Sen. Judiciary Com., Analysis of Assem. Bill No. 2931 

(1979-1980 Reg. Sess.), July 9, 1980, p. 2), we believe subdivision (d) of section 991 
13

construing statutes, we select the statutory construction that “avoid[s] an interpretation 

that would lead to absurd consequences.” (People v. Sinohui, supra, 28 Cal.4th 205, at p. 

212.) In the words of Walters, “We elect not to approve a procedure for determining 

compliance with a constitutional mandate when that procedure is vulnerable to attack on 

grounds which suggest the possibility of a type of star-chamber determination, 

particularly when the alternative poses little additional burden on the administration of 

justice.” (Walters, supra, 15 Cal.3d at p. 749.) 

We agree with the defense that the section must be interpreted to permit the trial 

courts to dismiss not only an entire complaint, but also individual charges within the 

complaint, if it finds the charges are not supported by probable cause. 

3. Public Policy

Many of the public policy objectives that underpin section 995 also support a 

reading of section 991 that permits trial courts to dismiss individual charges from a 

complaint. The Supreme Court has stated that preliminary hearings and section 995 

motions “operate as a judicial check on the exercise of prosecutorial discretion” and help 

ensure that the defendant is not charged excessively. (Mendella, supra, 33 Cal.3d at p. 

759.) Not only do excessive and unfounded charges confer a “tactical advantage . . . 

upon the prosecutor in respect to plea bargaining,” they also subject defendants to 

prejudicial introduction of “evidence concerning allegations that should have been 

‘weeded out’” in pretrial proceedings. (Id. at pp. 760-761.) 

These policy considerations apply equally in the misdemeanor context. We do not 

suggest that prosecutors regularly and inappropriately overcharge misdemeanor 

defendants. “A prosecutor abides by elementary standards of fair play and decency by 

refusing to seek indictments until he or she is completely satisfied the defendant should 

 

must be interpreted to mean that a defendant is discharged only “[i]f the court determines

that no such probable cause exists [for each offense].”
14

be prosecuted and the office of the prosecutor will be able to promptly establish guilt 

beyond a reasonable doubt. [Citations.]” (People v. Nelson (2008) 43 Cal.4th 1242, 

1256.) 

However, for reasons of fundamental fairness, we interpret rules so as to 

discourage, rather than encourage, abuses of prosecutorial discretion. (See, e.g., People 

v. Spicer (2015) 235 Cal.App.4th 1359, 1377 [interpreting rule so as not to encourage 

overcharging by prosecutors].) Permitting the trial court to “weed out” unfounded 

misdemeanor charges in response to a section 991 motion helps preserve fairness in the 

plea bargaining process, by ensuring that custodial, misdemeanor defendants do not 

bargain under a cloud of unfounded charges. (See Mendella, supra, 33 Cal.3d at p. 760 

[noting that unfounded allegations “may constitute powerful bargaining tools for the 

prosecutor” and cause the defendant to “remain under the threat of a long sentence during 

the entire plea negotiation process”].) Undoubtedly, fairness in plea bargaining is equally 

important in cases involving custodial and non-custodial defendants. However, custodial 

defendants are especially vulnerable in the plea bargaining process, as they are more 

likely to seek and accept a plea bargain as a means of escaping confinement. 

Similarly, the dismissal of unfounded charges ensures that bail is appropriately set. 

Bail is fixed according to the charges alleged, so the dismissal of some charges may 

justify reduced bail or release on a defendant’s own recognizance. For example, a single 

complaint may charge a defendant with misdemeanors and an infraction. If a magistrate 

finds no probable cause for the misdemeanors, the only charge remaining would be an 

infraction, for which no jail time may be imposed. (§ 19.6 [“An infraction is not 

punishable by imprisonment”].) In that case, pretrial confinement is assuredly not 

justified in the vast majority of cases. Yet, the defendant in this scenario would remain in 

jail pending trial if the People were correct that all charges against a defendant must stand 

unless there is no probable cause to support any of the counts.

As with felony charges, dismissal of unfounded misdemeanor charges also 

protects custodial defendants from the introduction of prejudicial or time-consuming 

evidence at trial, when that evidence is relevant only to charges that should have been 
15

“weeded out” in pretrial proceedings. (See Mendella, supra, 33 Cal.3d at pp. 760-761.) 

It also promotes judicial economy, allowing courts to avoid trials on unfounded charges. 

In the event of a dismissal under section 991, the prosecution is permitted to refile 

the complaint within 15 days of dismissal. (§ 991, subd. (e).) Nonetheless, the People 

argue that they could be foreclosed from refiling misdemeanor charges dismissed on a 

count-by-count basis. They point out that, following dismissal of some of the charges, a 

defendant may plead guilty to the remaining charges even without the prosecutor’s 

consent. (People v. Superior Court (Jurado) (1992) 4 Cal.App.4th 1217, 1230 (Jurado).) 

The People argue that a defendant’s decision to plead guilty to the remaining charges 

may trigger the “multiple prosecution” bar set forth in Kellett v. Superior Court of 

Sacramento County (1966) 63 Cal.2d 822 (Kellett). Kellett, according to the People, 

could prevent the prosecution from refiling the dismissed charges. Kellett is based on 

sections 654 and 954 and holds that “[w]hen . . . the prosecution is or should be aware of 

more than one offense in which the same act or course of conduct plays a significant part, 

all such offenses must be prosecuted in a single proceeding unless joinder is prohibited or 

severance permitted for good cause. Failure to unite all such offenses will result in a bar 

to subsequent prosecution of any offense omitted if the initial proceedings culminate in 

either acquittal or conviction and sentence.” (Id. at p. 827, fn. omitted.) We are not 

persuaded by the People’s reasoning.

First, we note that the People have cited no cases where Kellett has been applied to 

bar the refiling of a charge dismissed pursuant to sections 991 or 995, and we have found 

no such cases. To the contrary, in People v. Carter (2005) 36 Cal.4th 1215, the Supreme 

Court held that section 654 does not bar the defendant’s trial on charges that were 

dismissed from an earlier complaint, even though the defendant was subsequently tried 

and convicted on the remaining charges in that complaint. (Id. at pp. 1238-1240; see also 

Jurado, supra, 4 Cal.App.4th at pp. 1230-1231 [defendant who pled guilty to murder 

without prosecutor’s consent after section 995 dismissal of lying-in-wait special 

circumstance allegation could later be retried on the special circumstance]; 3 Witkin and 

Epstein, California Criminal Law (4th ed. 2012) §§ 261, 262, pp. 416-417 [discussing the 
16

multiple prosecution rule, and distinguishing retrials on individual counts dismissed from 

a complaint, even after the defendant is convicted of the remaining charges].) 

Section 1004 presents a situation analogous to that discussed here. That section 

permits a defendant to demur “to the accusatory pleading” on the grounds that the facts 

stated do not constitute “a public offense” or that the court lacks jurisdiction over “the 

offense charged.” (§ 1004, subds. (1) & (4).) If the demurrer is sustained and it appears 

the defects may be cured, the court may permit the filing of an amended complaint within 

10 days. (§ 1007.) We can find no authority stating that Kellett bars the filing of the 

amended complaint if the defendant pleads to the remaining charges in the interim.

Nor do we believe that Kellett should apply in the scenario posed by the People. 

The bar against successive prosecutions, as set forth in Kellett, exists to prevent 

prosecutorial harassment of defendants. (See Kellett, supra, 63 Cal.2d at pp. 825-826 [“It 

would constitute wholly unreasonable harassment . . . to permit trials seriatim until the 

prosecutor is satisfied with the punishment imposed”].) It does not apply when a 

defendant deliberately brings himself within the rule’s ambit through an act of 

“connivance and concealment.” (See People v. Hartfield (1970) 11 Cal.App.3d 1073, 

1081-1082 (Hartfiled) [defendant not allowed to claim the benefit of the multiple 

prosecution rule where he pled guilty to the misdemeanor charge of reckless driving in 

municipal court and advanced the date of the pronouncement of judgment so that 

judgment would be entered just before his scheduled trial on related felony charges in 

superior court].) A defendant who pleads guilty in a bid to foreclose refiling and 

prosecution of charges dismissed under section 991 does so out of “connivance” and will 

not be permitted to claim the benefit of a rule designed to prevent harassment of 

defendants by the government. (See Hartfield, 11 Cal.App.3d at p. 1081 [“[I]n the case 

at bench the operative fact (pronouncement of judgment) giving rise to defendant’s claim 

of harassment from double prosecution as prohibited by Penal Code, section 654 was 

procured by defendant himself by connivance and concealment, and he may not claim the 

benefit of the statute”].)
17

Moreover, even if the People were correct that Kellett could be invoked to bar the 

refiling of a charge dismissed pursuant to section 991, we believe the scenario is one that 

will occur in limited circumstances only and is unlikely to result in significant prejudice. 

The Kellett rule “is designed to cover prosecutions for offenses arising out of the same 

act.” (People v. Douglas (1966) 246 Cal.App.2d 594, 599.) In Kellett, supra, 63 Cal.2d 

at p. 824, the Supreme Court held that the charges of exhibiting a firearm in a threatening 

manner and possession of a concealable weapon by a felon could not be separately 

prosecuted where they arose from the single act of brandishing a pistol. By contrast, the 

rule has been held inapplicable in cases where the offenses arise from separate acts or 

conduct, even when they occurred in the same location at the same time. (See, e.g., 

People v. Martin (1980) 111 Cal.App.3d 973, 978 [separate prosecutions for burglary and 

possession of a sawed-off shotgun permitted where the defendant stole the shotgun 

during the burglary]; People v. Hurtado (1977) 67 Cal.App.3d 633, 637 [defendant may 

be separately prosecuted for drunk driving and possession of heroin where he was found 

trying to hide a package of heroin between his legs when stopped for drunk driving]; 

People v. Ward (1973) 30 Cal.App.3d 130, 136 [defendant who pled guilty to oral 

copulation was subject to second prosecution for rape, kidnapping, and assault; “[t]he 

mere fact that they occurred in defendant’s vehicle during the same night does not 

connect them as parts of a continuous course of conduct”].)

Therefore, even if Kellett could be read as barring prosecution on the dismissed 

charges in the event a defendant pleads guilty following a count-by-count dismissal, the 

bar would not apply unless the charges arise from the same act or conduct. If they arise 

from the same act or conduct, then section 654 would have prohibited double punishment 

in any event. In setting forth the multiple prosecution rule, the Kellett court noted that 

section 654 necessarily creates a risk that defendants may escape proper punishment as a 

result of a conviction of a lesser offense. (Kellett, 63 Cal.2d at p. 828; see, e.g., Barriga 

v. Superior Court (2012) 206 Cal.App.4th 739, 746 [defendant who pled guilty to 

resisting peace officer in exchange for dismissal of related charge of unlawfully driving 

or taking vehicle could not be subsequently prosecuted for carjacking].) “Accordingly, to 
18

avoid these risks it has always been necessary for prosecutors carefully to assess the 

seriousness of a defendant’s criminal conduct before determining what charges should be 

prosecuted against him.” (Kellett, supra, at p. 828.) It is equally necessary that 

prosecutors carefully assess the nature of the evidence and the charges supported by that 

evidence. We conclude, as the Supreme Court did in Kellett, that “[b]y emphasizing the 

importance of such assessment, our holding herein will not open the door to the escape of 

defendants from punishment for serious crimes because of convictions or acquittals of 

closely related minor crimes. It should tend instead to reduce the risk that they may 

escape such punishment by invoking the double jeopardy doctrine or the bar of section 

654.” (Id. at pp. 828-829.) 

DISPOSITION

The decision of the appellate division is reversed. 

CERTIFIED FOR PUBLICATION

KIRSCHNER, J. *

I concur:

MOSK, J.

 

*

Judge of the Los Angeles County Superior Court, assigned by the Chief Justice 

pursuant to article VI, section 6 of the California Constitution.
1

People v. Douglas Lee McGowan

B263026

TURNER, P.J., Dissenting

I. INTRODUCTION

I respectfully dissent from the order upholding the dismissal of counts 2 and 3 of 

the misdemeanor complaint. In my view, the plain language of Penal Code1section 991, 

subdivision (d) does not permit the dismissal of individual counts. Language permitting 

the dismissal of individual counts appears nowhere in section 991. But if the language of 

section 991 is ambiguous and resort to extraneous documents is proper, there is no 

evidence the Legislature intended that individual counts be dismissed. Some of the 

language in legislative documents is incorrect or irrelevant. But the other legislative 

evidence is solely consistent with the view of then Governor Edmund Brown Jr. as to 

why section 991 was enacted. Governor Brown believed the purpose of the section 991 

was to implement the due process right of an in custody misdemeanor defendant to a pretrial probable cause determination. (Gerstein v. Pugh (1975) 420 U.S. 103, 111-119 

(Gerstein); In re Walters (1975) 15 Cal.3d 738, 747-754 (Walters).) So do I.

II. STANDARDS OF REVIEW

Because this case involves an issue of a statutory interpretation applied to 

undisputed facts, we exercise independent review. (Burden v. Snowden (1992) 2 Cal.4th 

556, 562; Kennedy v. Kennedy (2015) 235 Cal.App.4th 1474, 1480.) Our Supreme Court 

has explained: “When construing a statute, we look first to its words, ‘“because they 

generally provide the most reliable indicator of legislative intent.” [Citation.] We give 

the words their usual and ordinary meaning [citation], while construing them in light of 

 

1 Future statutory references are to the Penal Code.
2

the statute as a whole and the statute’s purpose [citation].’ (Pineda v. Williams-Sonoma 

Stores, Inc. (2011) 51 Cal.4th 524, 529-530.)” (Accord, In re Ethan C. (2012) 54 Cal.4th 

610, 627; Hsu v. Abbara (1995) 9 Cal.4th 863, 871.) According to our Supreme Court: 

“‘If there is no ambiguity in the language, we presume the Legislature meant what it said 

and the plain meaning of the statute governs.’ [Citation.] ‘Only when the statute’s 

language is ambiguous or susceptible of more than one reasonable interpretation, may the 

court turn to extrinsic aids to assist in interpretation.’ [Citation.]” (Pineda v. WilliamsSonoma Stores, Inc., supra, 51 Cal.4th at p. 530; see In re Ethan C., supra, 54 Cal.4th at 

p. 627.) As I will explain, this is the controlling rule of interpretative law. 

In any event, if (but only if) the statutory language is ambiguous, then it is 

appropriate to review extraneous historical materials which assist in determining what the 

Legislature intended. Our Supreme Court has explained the nature of such evidence that 

may be reviewed: “If the statutory language is susceptible of more than one reasonable 

interpretation, we must look to additional canons of statutory construction to determine 

the Legislature’s purpose. (Olson v. Automobile Club of Southern California [ (2008) ] 

42 Cal.4th [1142,] 1147.) ‘Both the legislative history of the statute and the wider 

historical circumstances of its enactment may be considered in ascertaining the legislative 

intent.’ (Dyna-Med, Inc. v. Fair Employment & Housing Com.[ (1987) ] 43 Cal.3d 

[1379,] 1387.)” (McCarther v. Pacific Telesis Group (2010) 48 Cal.4th 104, 110.) In my 

view, the weight of the historical materials is that individual counts, as distinguished 

from the complaint’s entirety, may not be dismissed. (§ 991, subd. (d) [“dismiss the 

complaint.”].)

III. PLAIN LANGUAGE ANALYSIS

In my view, the plain language of section 991 is controlling without reference to 

any legislative intent materials. Nothing in the language of section 991 allows for the 

dismissal of individual counts. I agree with the following analysis in the appellate 

division opinion: “Section 991 expressly refers to the dismissal of the complaint: ‘If the 
3

court determines that no such probable cause exists, it shall dismiss the complaint and 

discharge the defendant.’ (§ 991, subd. (d), italics added.) The statute further provides 

for the refiling of a complaint after a motion to dismiss is granted under section 991: 

‘Within 15 days of the dismissal of a complaint pursuant to this section the prosecution 

may refile the complaint.’ (§ 991, subd. (e), italics added.) There is no language 

authorizing either the dismissal of charges independent of the complaint, or the refiling of 

a charge that was previously dismissed from a complaint that otherwise survived a 

section 991 motion. The statute consistently references ‘the complaint,’ not independent 

charges within the complaint.” This analysis is controlling and dispenses with the need 

to review legislative intent materials. (Pineda v. Williams-Sonoma Stores, Inc., supra, 51 

Cal.4th at p. 530; see In re Ethan C., supra, 54 Cal.4th at p. 627.)

IV. STATUTORY CONSTRUCTION ANALYSIS

A. Introduction

In my view, the weight of the evidence demonstrates that the Legislature did not 

intend to provide for the dismissal of individual counts without dismissing the entire 

complaint. Further, unlike the parties, I believe some of the language in one Senate 

caucus report and in every version of the Legislative Counsel’s Digest is just plain 

wrong. Those errors are irrelevant though in terms of the issue before us. When the 

totality of the evidence on the subject is assessed, I conclude the Legislature never 

intended to permit dismissal of individual counts without dismissal of the entire 

complaint. No committee report, analysis or letter by an interested party directly or 

inferentially states the language in section 991, subdivision (d) (“dismiss the complaint”) 

permits dismissal of individual counts. 
4

B. Incorrect Analysis

The legislative intent materials contain an inaccuracy. Every version of the 

Legislative Counsel’s Digest for Assembly Bill No. 2931 (1979-1980 Reg. Sess.) 

(Assembly Bill No. 2931) contains the following incorrect analysis: “Existing law 

authorizes the magistrate in misdemeanor cases to ascertain the gravity of the offense 

committed, in case the defendant may be held to answer for a higher offense. Existing 

law does not specifically provide for a determination in misdemeanor cases, prior to the 

filing of an information, of whether there is probable cause to believe that a public 

offense has been committed and that the defendant is guilty thereof. [¶] This bill would 

provide procedures for such a determination that the magistrate at the time of 

arraignment. . . .” (Legis. Counsel’s Dig., Assembly Bill No. 2931, Mar. 6, 1980; Legis. 

Counsel’s Dig., Assembly Bill No. 2931, as amended in Assembly, May 7, 1980; Legis. 

Counsel’s Dig., Assembly Bill No. 2931, Legis. Counsel’s Dig., Assembly Bill No. 2931, 

4 Stats. p. 470.) As can be noted, the Legislative Counsel’s Digest conflates the use of an 

information which applies only in felony cases to misdemeanor litigation. This is 

extraordinarily unusual because information provided in Legislative Counsel’s Office 

reports typically correctly discusses matters of criminal procedure. In my more than a 

quarter century with the Court of Appeal, I have never seen an error of this magnitude in

any Legislative Counsel’s Office report or digest. Such is a testament to that office’s 

historic integrity and competence. The same erroneous analysis appears in a report 

prepared by the Senate Democratic Caucus in connection with Assembly Bill No. 2931 as 

amended July 9, 1980. (Rep. prepared for Senate Democratic Caucus on Assem. Bill No. 

2931 as amended Jul. 9, 1980, Jul. 10, 1980, p. 1.) 
5

C. Evidence Consistent with the Analysis that Section 991 Provides a Trial Court with 

the Authority to Dismiss a Complaint But Not Individual Counts

1. The decisional authority concerning the custody of misdemeanor defendants preceding 

introduction of Assembly Bill No. 2391

Two decisions preceded and motivated the introduction of Assembly Bill No. 

2391. The first decision was Gerstein, supra, at pages 106-125, a federal civil rights 

action which discusses the extent of Fourth Amendment rights of detained arrestees. 

Gerstein held, “[W]e hold that the Fourth Amendment requires a judicial determination 

of probable cause as a prerequisite to extended restraint of liberty following arrest.” 

(Id. at p. 114; see Michigan v. Duran (1978) 439 U.S. 282, 285, fn. 3.) Gerstein further 

held: “[A state] must provide a fair and reliable determination of probable cause as a 

condition for any significant pretrial restraint of liberty, and this determination must be 

made by a judicial officer either before or promptly after arrest.” (Id. at pp. 124-125; see 

Baker v. McCollan (1979) 443 U.S. 137, 142-143.) Gerstein allowed the states flexibility 

and the option of experimenting in devising post-arrest probable cause-determination 

hearing procedures. (Gerstein, supra, 443 U.S. at p. 123; see County of Riverside v. 

McLaughlin (1991) 500 U.S. 44, 54.) 

The second decision was Walters, supra, 15 Cal.3d at pages 747-753. In Walters, 

our Supreme Court evaluated this state’s misdemeanor pretrial procedures for compliance 

with the Gerstein probable cause determination requirements. Our Supreme Court held, 

“In light of the recent United States Supreme Court decision in Gerstein[, supra,], we 

agree with petitioner and hold that a judicial determination of probable cause to hold an 

arrestee for trial on a misdemeanor charge must be made if the arrestee requests that 

determination, unless pending trial he is released on his own recognizance.” (Walters, 

supra, 15 Cal.3d at p. 743, fn. omitted; see In re Golden (1977) 65 Cal.App.3d 789, 795.) 

Walters described the issue decided in Gerstein: “If the judicial officer finds that 

probable cause has not been established, the defendant must be discharged from custody. 
6

However, prosecution of the offense is not precluded thereafter since additional evidence 

may be obtained by the time of trial. In any event, an unlawful arrest is not a bar to trial. 

(See People v. Bradford (1969) 70 Cal.2d 333, 344-345.) Gerstein is concerned only 

with probable cause for pretrial detention and does not purport to hold that the absence of 

probable cause for detention bars further prosecution of the case. (Gerstein[, supra, 420 

U.S.] at pp. 124-125, fn. 26.)” (Walters, supra, 15 Cal.3d at p. 753.) As will be noted, 

legislative committee and other documents explain that the purpose of Assembly Bill No. 

2931 was to codify Walters. (Sen. Com. on Judiciary, Rep. on Assem. Bill No. 2931 as 

amended May 7, 1980 [“The purpose of this bill is to create a means for eliminating 

groundless misdemeanor complaints before a case goes to trial and to codify In re 

Walters.”]; Governor Edmund Brown Jr., Letter to Assemblymembers on Assem. Bill 

No. 2931 as enacted [“[T]he bill also contains an unrelated provision which attempts to 

codify the courts’ ruling in In re Walters (1975) 15 Cal.3d 738.”].)

2. Legislative history documents

When originally introduced, Assembly Bill No. 2931 applied to misdemeanor 

defendants even if they were out of custody. (Assem. Bill No. 2931, as introduced Mar.

6, 1980.) On April 10, 1980, prior to the scheduled Assembly Committee on Criminal 

Justice hearing, Steve White of the California District Attorneys Association wrote to 

Assemblymember Elihu Harris. (Assemblymember Harris was the author of Assembly 

Bill No. 2931.) Mr. White explained that “current decisional law,” in obvious reference 

to Gerstein and Walters, required a probable cause determination only in the case of 

detained defendants. (Letter of Steve White to Assemblymember Harris concerning 

Assem. Bill No. 2931 as introduced, Apr. 10, 1980, p. 1.) After the initial hearing before 

the criminal justice committee, Assembly Bill No. 2931 was amended to apply only to 

detained misdemeanor defendants. In his April 10, 1980 letter, Mr. White never 

expressed any belief about individual counts being dismissed if Assembly Bill No. 2931 

was enacted. (As will be noted, neither did any other person who wrote the Legislature.)
7

Two reports prepared for an April 28, 1980 hearing before the Assembly 

Committee on Criminal Justice describe how Assembly Bill No. 2931 established a 

procedure for determining probable cause in misdemeanor cases. At the conclusion of 

the description of the bill, both committee reports state, utilizing the same language: “4. 

If the court determines that there is probable cause to believe that the defendant 

committed the misdemeanor it shall set the matter for trial. [¶] 5. If the court determines 

that there is no probable cause it shall dismiss the complaint.” (Assem. Com. on 

Criminal Justice (Assem. Bill No. 2391 as introduced) Apr. 28, 1980, p. 1; Assem. Com. 

on Criminal Justice (Assem. Bill No. 2391 as introduced) Apr. 21, 1980, p. 1, italics 

added.) 

In a similar vein, the Assembly third reading report states: “This bill establishes a 

procedure for determining probable cause in misdemeanor cases where the defendant is 

in custody at the time he or she appears before the magistrate for arraignment and upon 

motion of counsel. Specifically, the bill: [¶] 1) Requires the court to determine the 

probable cause issue immediately, or for good cause continue the hearing for up to three 

days; [¶] 2) Requires the court, in determining probable cause, to consider any warrant 

or supportive affidavits, the sworn complaint or other documents of similar reliability;

and [¶] 3) Requires the court to set the matter for trial if probable cause exits, or else

dismiss the complaint.” (Assem. Office of Research, 3rd reading rep. (Assem. Bill No. 

2391 as amended May 7, 1980) May 12, 1980, p. 1, italics added.) 

In preparation for final Assembly action, James Tucker, the lobbyist for the 

American Civil Liberties Union California Legislative Office, prepared a floor statement 

for use by Assemblymember Harris. (Memorandum by James Tucker concerning Assem. 

Bill No. 2931 to the Assemblymember Elihu Harris, May 14, 1980 (hereafter Tucker 

memorandum).) To begin with, Mr. Tucker explained that Assembly Bill No. 2391 was a 

codification of the Walters decision: “[Assembly Bill No. 2391] is merely a codification 

of a 1975 Supreme Court decision by Mr. Chief Justice Wright (In re Walters) which held 

that where a person is arrested on a misdemeanor charge and he is in custody at the time 

of his arraignment he is entitled to have the judge review the facts of the complaint to 
8

determine if there is probable cause to believe an offense was committed by the 

defendant. If the court finds that there is no probable cause then the judge must release 

the defendant pending a trial or other hearing on the case.” (Tucker memorandum, p. 1.) 

Mr. Tucker explained that Assembly Bill No. 2391 clarified the Walters decision by 

specifying the types of evidence the trial court may consider in making a probable cause 

determination. (Tucker memorandum, p. 1.) 

At another point, Mr. Tucker’s memorandum to Assemblymember Harris states: 

“The other aspect of the bill . . . is that it permits the court to dismiss the case if it 

determines that there is no probable cause, but it permits the prosecutor to refile the case 

a second time if he disagrees with the action of the court or he is able to come up with 

additional evidence. Thus, the bill fully protects the ability of the prosecutor to prosecute 

legitimate cases while still permitting the court to screen out those cases for which there 

is clearly no evidence to support the charge. This will help the Municipal Courts 

eliminate those cases from its calendar which should not be in the court system.” (Tucker 

memorandum, p. 2.) Nothing in Mr. Tucker’s memorandum describing Assembly Bill 

No. 2391 and the Walters decision prepared for Assemblymember Harris’s use on the 

Assembly floor refers to the dismissal of individual counts. 

Once it passed the lower house, Assembly Bill No. 2391 was referred to the 

Senate Committee on Judiciary on May 21, 1980. (Assem. Final History, Assem. Bill 

No. 2931, p. 1684.) The Senate judiciary committee hearing on Assembly Bill No. 2391 

was completed on July 8, 1980. (Ibid.) The report prepared for the Senate judiciary 

committee hearing concluded on July 8, 1980, specifies as the key issue, “SHOULD 

THERE BE A PROCEDURE FOR DETERMINING PROBABLE CAUSE IN 

MISDEMEANOR CASES AS PRESCRIBED BY THE U.S. AND CALIFORNIA 

SUPREME COURTS?” (Sen. Committee on Judiciary, op. cit., p. 1.) The Senate 

judiciary committee report identifies as the purpose of Assembly Bill No. 2391: “Under 

existing law a person accused of a felony has a right to a hearing in order to determine 

whether probable cause exists to believe that she or he has committed the offense. 

However, existing law contains no provision for such a hearing when a person has been 
9

charged with a misdemeanor, though a judicial determination of probable cause when the 

defendant in custody was required by the U.S. Supreme Court in Gerstein v. Pugh (1975)

and the California Supreme Court in In re Walters (1975). [¶] This bill would establish a 

procedure for determining probable cause in misdemeanor cases where the defendant is 

in custody and would provide that two dismissals for lack of probable cause is a bar to 

further prosecution. [¶] The purpose of this bill is to create a means for eliminating 

groundless misdemeanor complaints before a case goes to trial and to codify In re 

Walters.” (Sen. Committee on Judiciary, op. cit., pp. 1-2, italics added.) 

The Senate judiciary committee report then synthesizes the holding of Walters, 

supra: “In the case of In re Walters (1975) 15 Cal.3d 738, the California Supreme Court 

held unanimously that, unless waived, a judicial determination of probable cause is 

required in every case in which a defendant charged with a misdemeanor is detained 

awaiting trial. In re Walters was in turn based on the U.S. Supreme Court decision in 

Gerstein v. Pugh (1975) 420 U.S.103, which required such a probable cause 

determination, but which afforded the states wide latitude in fulfilling the requirement.” 

(Sen. Committee on Judiciary, op. cit., p. 2.) 

The Senate judiciary committee report then expressly identifies the relationship 

between the Walters opinion and Assembly Bill No. 2391: “The structure of the pretrial 

probable cause determination set forth in In re Walters is similar to that in [Assembly Bill 

No.] 2931 [¶] (a) Arraignment is the most appropriate stage at which to make a judicial 

determination of probable cause that the defendant is being properly detained. However, 

the parties may stipulate to a later determination or the court may, for good cause, 

continue the determination on defendant’s motion. [¶] (b) Use of complaint: When a 

defendant is arrested pursuant to a warrant, probable cause may be based solely upon 

examination of the complaint, arrest warrant, and supporting affidavit. If the defendant is 

arrested without a warrant, the judge may make her or his determination upon a sworn 

complaint that incorporates by reference other factual materials supporting probable 

cause. Probable cause may also be proved by a sworn complaint that, without reference 

to other materials, fully explicates the factual basis of the crime charged. [¶] (c) 
10

Testimonial evidence: In re Walters would also permit the prosecution to utilize 

testimonial evidence on the issue of probable cause in the presence of the defendant and 

her or his attorney if relevant documentation did not support continued detention.” (Sen. 

Committee on Judiciary, op. cit., pp. 2-3.) 

The Senate judiciary committee report describes the probable cause hearing as 

follows: “2. Preliminary hearing procedure [¶] Under this bill the probable cause 

hearing would take place as follows: [¶] (a) If a defendant was in custody and had 

pleaded not guilty, the magistrate, on motion of either counsel or the defendant, would at 

the time of arraignment determine whether probable cause existed to believe that the 

defendant was guilty of a public offense. [¶] (b) The court would determine probable 

cause immediately, or, upon a good cause showing, could grant a continuance, not to 

exceed three days. [¶] (c) In determining probable cause, the court could consider any 

arrest warrant and supporting affidavits, the sworn complaint, and other similarly reliable 

documents. [¶] (d) If the court determined that probable cause existed, the case would 

be set for trial. [¶] (e) If the court determined that probable cause did not exist, the 

complaint would be dismissed and the defendant discharged.” (Sen. Committee on 

Judiciary, op. cit., pp. 3-4, italics added.) 

After the July 8, 1980 Senate hearing, Assembly Bill No. 2391 was amended to 

add what is now section 1043.5.2 (Assem. Bill No. 2931, as amended in the Senate, Jul. 

 

2 Section 1043.5 states: “(a) Except as otherwise provided in this section, the 

defendant in a preliminary hearing shall be personally present. [¶] (b) The absence of 

the defendant in a preliminary hearing after the hearing has commenced in his presence 

shall not prevent continuing the hearing to, and including, holding to answer, filing an 

information, or discharging the defendant in any of the following cases: [¶] (1) Any 

case in which the defendant, after he has been warned by the judge that he will be 

removed if he continued his disruptive behavior, nevertheless insists on conducting 

himself in a manner so disorderly, disruptive, and disrespectful of the court that the 

hearing cannot be carried on with him in the courtroom. [¶] (2) Any prosecution for an 

offense which is not punishable by death in which the defendant is voluntarily absent. [¶] 

(c) Any defendant who is absent from a preliminary hearing pursuant to paragraph (1) of 

subdivision (b) may reclaim his right to be present at the hearing as soon as he is willing 

to conduct himself consistently with the decorum and respect inherent in the concept of 
11

9, 1980, pp. 1-3.) A report prepared for Senate consideration of the July 9, 1980 

amendment, describes the probable cause hearing portion of Assembly Bill No. 2391: 

“This bill would establish a procedure for determining probable cause in misdemeanor 

cases where the defendant is in custody at the time he or she appears before the 

magistrate for arraignment and upon motion of [counsel]. Specifically, the bill would: 

[¶] 1) Require the court to determine the probable cause issue immediately, or for good 

cause continue the hearing for up to three days; [¶] 2) Require the court, in determining 

probable cause, to consider any warrant or supporting affidavits, the sworn complaint and 

other documents of similar reliability; and [¶] 3) Require the court to set the matter for 

trial if probable cause exists, or else dismiss the complaint.” (Sen. third reading report on 

Assem. Bill No. 2931 as amended July 9, 1980 prepared for Senate floor vote, May 19, 

1980, p. 1, italics added.) 

After the Senate amendments were adopted, Assembly Bill No. 2391 returned to 

the lower house for further action. While the legislation was awaiting concurrence in the 

Senate amendments, Mr. White, on behalf of the district attorneys association, weighed in 

again with concerns about Assembly Bill No. 2391. Mr. White was concerned because 

the legislation went beyond the Walters decision in one respect. Assembly Bill No. 2391 

required dismissal of the complaint in addition to the defendant’s release. On July 17, 

1980, Mr. White wrote: “We believe your proposal is an attempt to codify a 1975 

California Supreme Court decision, In re Walters, 15 Cal.3d 738, in which it was held 

that a judicial determination of probable cause must take place for the continued 

detention of a person charged with a misdemeanor. The court further held that if there is 

no probable cause, the defendant must be discharged from custody. The rationale for this 

decision was an accommodation between an individual’s right to liberty and the State’s 

duty to control crime. The probable cause determination became a condition for any 

significant pretrial restraint of liberty. [¶] Your proposal does provide an in-custody 

defendant with his right to a preliminary hearing where the charged offense is a 

 

courts and judicial proceedings. [¶] (d) Subdivisions (a) and (b) shall not limit the right 

of a defendant to waive his right to be present in accordance with Section 977.”
12

misdemeanor. However, because the bill would additionally mandate a dismissal of the 

case, along with a discharge of the defendant, if there is no probable cause to believe the 

defendant committed the misdemeanor, it goes beyond In re Walters.” (Letter of Steve 

White, California District Attorneys Association to Assemblymember Harris re Assem. 

Bill No. 2931 as amended May 7, 1980, Jul. 17, 1980, p. 1.) Mr. White then requested 

that Assembly Bill No. 2931 be amended to provide for an accused’s release on her or his 

own recognizance rather than dismissal and the defendant’s discharge. (Ibid.) 

The unfinished business report prepared for the Assembly digested the bill as 

passed by the Assembly: “As passed by the Assembly, this bill established a procedure 

for determining probable cause in misdemeanor cases where the defendant is in custody 

at the time he or she appears before the magistrate for arraignment and upon motion of 

counsel. Specifically, the bill: [¶] 1) Required the court to determine the probable 

cause issue immediately, or for good cause continue the hearing for up to three days; [¶] 

2) Required the court, in determining probable cause, to consider any warrant or 

supporting affidavits, the sworn complaint and other documents of similar reliability; and 

[¶] 3) Required the court to set the matter for trial if probable cause exists, or else 

dismiss the complaint.” (Assem. Office of Research, unfinished business rep. prepared 

for Assem. Bill No. 2391 as amended July 9, 1980, concurrence in Senate amendments, 

August 19, 1980, p. 1, italics added.) No reference in the Assembly unfinished business 

report prepared after Senate action is made to dismissal of individual counts. 

Once legislative action was completed, Assembly Bill No. 2391 was sent to 

Governor Brown for review. As noted, Assembly Bill No. 2391 enacted sections 991 and 

1043. The enrolled bill report prepared by the then Legal Affairs Adviser Anthony J. 

Kline discusses the legislation’s purpose and effect: “This bill makes two separate 

changes in criminal procedures in municipal court. [¶] . . . Case law currently provides 

that if a person charged with a misdemeanor is not released on bail or his own 

recognizance prior to arraignment, upon request, the court must hold a probable cause 

hearing. If it does not find probable cause, the defendant must be released pending trial. 

(In re Walters (1975) 15 Cal.3d 738.) [¶] This bill goes beyond the Walters’ decision 
13

and requires that the charges be dismissed if probable cause is not established, although 

the prosecution may thereafter refile the complaint within 15 days. [¶] This provision of 

the bill is opposed by both district attorneys and judges who believe it will only result in 

more court work and delays. They also question whether this provision is truly in the 

defendant’s best interest, since if charges are in fact refiled he will be rearrested and 

probably have to post bail again.” Mr. Kline’s enrolled bill report concludes that 

although “this provision is bad law,” its application would be limited to cases: of incustody defendants; where the accused requests a hearing; and where the court finds 

“there is no probable cause.” Mr. Kline also discusses prosecutors’ support for section 

1043.5 which allows a preliminary hearing to continue if the accused absconds. Mr. 

Kline recommended Assembly Bill No. 2931 be permitted to become law without the 

Governor’s signature with an appropriate gubernatorial message. Mr. Kline’s analysis 

reflects consideration of the views expressed by the various stakeholders during the 

legislative process. Nothing in Mr. Kline’s enrolled bill report states that Assembly Bill 

No. 2391 will permit the dismissal of individual counts. 

Governor Brown did not sign Assembly Bill No. 2391. Rather, he allowed 

Assembly Bill No. 2391 to become law without his signature. In his September 30, 1980 

letter to the Assembly, Governor Brown explained section 1043.5 provided needed 

procedures to control disruptive defendants during a preliminary hearings.3 However, the 

second paragraph of Governor Brown’s letter explains that another purpose of Assembly 

Bill No. 2391, the enactment of section 991, was to codify the Walters decision: 

“However, the bill also contains an unrelated provision which attempts to codify the 

 

3 The first paragraph of Governor Brown’s letter to the Assembly states: “I am 

allowing Assembly Bill [No.] 2391 to become law without my signature because it 

provides needed changes which will prevent criminal defendants from disrupting or 

frustrating court procedures. In view of the longer and more complex preliminary 

hearings resulting from the recent decision in Hawkins v. Superior Court (1978) 22 

Cal.3d 584, prosecutors believe this protective legislation is necessary.” (Letter of 

Governor Edmund Brown Jr. to the Assembly concerning Assem. Bill No. 2391, Sept. 

30, 1980, p. 1.) 
14

court’s ruling in In re Walters (1975) 15 Cal.3d 738. This portion of the bill may result in 

additional court proceedings and subject defendants to repeated arrests; is bad law and 

should be corrected by the Legislature next session.” (Letter of Governor Edmund 

Brown Jr., op. cit.) As noted previously, Governor Brown stated that the legislative 

purpose in enacting section 991 was to codify the Walters decision. And, nothing in 

Governor Brown’s letter indicates, from his perspective, that the Legislature intended to 

allow for the dismissal of individual counts. Rather, the obvious focus is on the dismissal 

of a complaint with the ensuing release of the accused to be followed by the filing of an 

amended misdemeanor complaint.

Finally, various parties presented letters of support or opposition to Assembly Bill 

No. 2931. None of those letters assert Assembly Bill No. 2931 permits the dismissal of 

individual counts as distinguished from the entire complaint. (Michael L. Pinkerton, Cal. 

Attorneys for Criminal Justice, letter to Governor Brown on Assem. Bill No. 2931, Sept. 

17, 1980, p. 1 [“This bill is needed to eliminate frivolous misdemeanor complaints at an 

early stage. . . .”]; Letter of Steve White, op. cit., Jul. 17, 1980, p. 1 ; J. Michael Byrne, 

Executive Committee of Criminal Justice Section, Los Angeles County Bar Association, 

letter to Assem. Speaker Leo T. McCarthy on Assem. Bill No. 2931, Sept. 17, 1980, p. 1 

[letter of opposition]; Judge Brian D. Crahan, Los Angeles County Municipal Court 

Judges’ Association, letter to Sen. Bob Wilson on Assem. Bill No. 2931 as amended May 

7, 1980, Jul. 13, 1980 [letter of opposition]; Maureen P. Higgins, Deputy Attorney 

General, letter to Assemblymember Harris on Assem. Bill No. 2931, Apr. 18, 1980 [letter 

of opposition]; Marjorie C. Swartz, Deputy State Public Defender, letter to 

Assemblymember Harris on Assem. Bill No. 2931, Apr. 18, 1980 [letter of support]; 

Michael L. Pinkerton, Cal. Attorneys for Criminal Justice, letters to Assemblymember 

Harris on Assem. Bill No. 2931, April 16 and 10, 1980 [letters of support]; Steve White, 

op. cit., Apr. 10, 1980 [letter of opposition]; Judge Brian D. Crahan, Los Angeles County 

Municipal Court Judges’ Association, letter to Assemblymember Harris on Assem. Bill 

No. 2931, Apr. 11, 1980 [letter of opposition].) The entirety of the foregoing documents 
15

demonstrate an absence of any legislative intention to permit individual counts to be 

dismissed as distinguished from the entirety of the misdemeanor complaint.

D. Evidence Cited By Defendant In Support of His Argument that Section 991 Provides 

a Judge or Magistrate with the Authority to Dismiss Individual Counts

By contrast, defendant contends there are legislative documents which show the 

Legislature expected section 991 permitted a trial court to dismiss individual counts. A 

number of documents contain the following language: “Currently there is no procedure 

to weed out groundless misdemeanor complaints prior to trial. Proponents argue that this 

bill would permit the dismissal of unsupported or frivolous charges. Proponents indicate 

that certain indigents accused of misdemeanors can be in custody for 30 days before 

groundless charges can be weeded out.” (Assem. Com. on Criminal Justice (Assem. Bill 

No. 2391) Apr. 21, 1980, p. 2; Assem. Com. on Criminal Justice (Assem. Bill No. 2391) 

Apr. 28, 1980, p. 2.) Similar language appears in a Senate reports: “Proponents argue 

that this bill would establish a procedure for the expeditious dismissal of unsupported or 

frivolous charges. They also state that, under the present system, people accused of 

misdemeanors are in custody for 30 days before groundless charges can be ascertained.” 

(Sen. third reading report on Assem. Bill No. 2931 as amended July 9, 1980, p. 1; Sen. 

Democratic Caucus, Rep. on Assem. Bill No. 2931 as amended July 9, 1980; Sen. 

Committee on Judiciary, op. cit., pp. 4-5; Sen. Com. on Judiciary report on Assem. Bill 

No. 2931 as amended May 7, 1980, pp. 4-5.) 

In addition, there are documents using the terminology “preliminary hearing” to 

describe the section 991 proceeding. Defendant utilizes these references to a preliminary 

hearing to support his argument that individual counts may be dismissed as would be the 

case in a felony prosecution. The first references to a preliminary hearing are in the two 

Assembly criminal justice committee reports prepared for April 21 and 28, 1980 hearings 

provides as background analysis: “Persons accused of felony offenses have a right to a 

hearing before being held to answer on the charges. The hearing is to determine whether 
16

there is reasonable cause to believe a felony has been committed by the defendant. The 

purpose of the preliminary hearing is to weed out groundless or unsupported charges 

(Witkin, Ca. Crim. Pro. p. 128). Persons accused of misdemeanors and persons who 

waive their right to a preliminary hearing do not have a right of review of the charges 

against them prior to trial.” (JN 22, 24 )~ (Assem. Com. on Criminal Justice, op. cit., 

Apr. 28, 1980, p. 1; Assem. Com. on Criminal Justice, op. cit., Apr. 21, 1980, p. 1.) The 

exact same language appears in the report prepared for the final Senate vote. (Sen. third 

reading report, op. cit., p. 2.) As can be noted, the two Assembly reports confuse the 

felony procedure with misdemeanor case processing. This misunderstanding is probably 

based upon the previously discussed error in the Legislative Counsel’s Digest. However, 

the two Assembly reports describe the proposed section 991 hearing as a preliminary 

hearing. The same is true of the Senate third reading report. 

Similarly, the Los Angeles County Municipal Court Judges Association argued 

that Assembly Bill No. 2931 created a time-consuming preliminary hearing for 

misdemeanors and thereby opposed the proposed legislation. (Letters of Judge Brian 

Crahan, op. cit., Apr. 11 and June 13, 1980.) The Senate judiciary committee report 

identifies the opposition from the municipal court judges and comments: “The Los 

Angeles County Judges’ Association states that preliminary hearings for misdemeanors 

are unnecessary given existing procedures for challenging probable cause. [¶] The 

Association is also concerned that these hearings would only add to court congestion. [¶] 

SINCE A DETERMINATION OF PROBABLE CAUSE IS MANDATED BY BOTH 

THE U.S. AND CALIFORNIA SUPREME COURTS, WHAT IS THE BASIS FOR 

OPPOSITION BY LOS ANGELES MUNICIPAL COURT JUDGES?” (Sen. Com. on 

Judiciary report, op. cit., p. 5.) One additional report indirectly adverts to the municipal 

court judges’ congestion concerns. (Sen. Democratic Caucus, op. cit., p. 1.) 
17

E. Analysis

The weight of the evidence indicates the Legislature did not consider whether nor 

intend to allow for the dismissal of individual counts during the misdemeanor probable 

cause hearing. First, Assembly Bill No. 2931’s purpose was to codify the Gerstein and 

Walters requirement that a probable cause determination be made before a misdemeanor 

defendant remains in custody awaiting trial. In allowing Assembly Bill No. 2931 to 

become law without his signature, Governor Brown expressly so stated. The Senate 

Judiciary Committee report expressly states the purpose of Assembly Bill No. 2931 is to 

create a procedure to eliminate “groundless misdemeanor complaints” and “codify In re 

Walters.” (Sen. Com. on Judiciary report, op. cit., p. 2.) 

Further, the Tucker memorandum which contains the floor statement for 

Assemblymember Harris states that Assembly Bill No. 2931 is merely a codification of 

Walters. (Tucker memorandum, pp. 1-2.) And, as explained by the Senate Judiciary 

Committee staff, Assembly Bill No. 2931 structures the probable cause hearing so as to 

comply with the Walters decision and the Fourth Amendment. (In re Walters, supra, 15 

Cal.3d at pp. 750-753; Sen. Com. on Judiciary report, op. cit., pp. 1-4.) The only 

difference between the Fourth Amendment requirements described in Walters and 

Assembly Bill No. 2931 is the requirement a complaint be dismissed as distinguished 

from requiring the accused’s release. This was the precise issue identified by Mr. White 

of the district attorneys association, Mr. Kline and Governor Brown. Nothing in Walters 

requires dismissal of a complaint; if probable cause is not present, the accused must be 

released. More to the point, nothing in Walters requires dismissal of individual counts. 

But, both Assembly Bill No. 2931 and Walters required discharge of a misdemeanor 

accused if probable cause is not present.

Second, the committee reports and other documents only refer to dismissal of the 

complaint, not individual counts. On 12 occasions, legislative history documents refer to 

dismissal of a complaint. On no occasion does any report, analysis, letter or version of 
18

Assembly Bill No. 2931 refer to dismissal of an individual count. Thus, defendant’s 

nonspecific references to the dismissal of frivolous charges language do not support the 

theory that dismissal of individual counts is appropriate. Defendant seeks to utilize 

committee reports to support a position which never is articulated in the legislative 

process—that individual counts may be dismissed. The only disposition in terms of 

dismissal mentioned in any legislative documents (including versions of Assembly Bill 

No. 2931) is the complaint’s dismissal. (§ 991, subd. (d) [“dismiss the complaint.”].)

Third, defendant’s theory that the section 991 misdemeanor probable cause 

hearing can be analogized to preliminary hearing where individual counts can be 

dismissed is without merit. The preliminary hearing, an alternative to the grand jury 

indictment processes, has its basis in the English common law. The United Supreme 

Court has explained the use of an information as an alternative to indictment was “an 

ancient proceeding at” common law. (Hurtado v. California (1884) 110 U.S. 516, 525-

526, 538; see Jones v. Robbins (Mass. 1857) 74 Mass. 329, 346; Jerold H. Israel, FreeStanding Due Process and Criminal Procedure: The Supreme Court’s Search for 

Interpretive Guidelines (Spring 2001) 45 St. Louis U. L.J. 303, 318.) The preliminary 

hearing process was first adopted in 1850 as part of the Act to regulate the Proceedings in 

Criminal Cases. (Stats. 1850, ch. 119, §§ 147-163, pp. 286-287.) Since the adoption of 

the Constitution of 1879, unless a felony is charged with an indictment, a preliminary 

hearing is the constitutionally mandatory procedure before a felony information may be 

filed. (Cal. Const., art. I, § 14; Kalloch v. Superior Court (1880) 56 Cal. 229, 233-234.) 

None of the committee reports or other memoranda compare the felony and misdemeanor 

charging processes other than to reference the fact there is no preliminary hearing in a 

case such as ours. 

Here, the Legislature used language consistent only with dismissal of the entire 

complaint. In addition, the committee reports and other documents indicate the purpose 

of Assembly Bill No. 2931 was to comply with the Fourth Amendment requirements 

imposed by Gerstein and Walters. No such legislative history exists in the case of felony 

preliminary hearings which, as noted, finds its basis in: English common law; the first 
19

criminal enactments after statehood; and in the California Constitution. Also, a felony 

preliminary hearing applies to both incarcerated and out of custody defendants. Section 

991 applies only to in custody defendants. And for good reason, Assembly Bill No. 2931 

was adopted in response to the Fourth Amendment custody concerns identified in

Gerstein and Walters. And, felony preliminary hearings and section 991 involve the use 

of entirely different evidence. The detention decision required by section 991 only 

involves the use of reports, not live sworn testimony as in the case of a felony 

preliminary hearing. More to the point, no committee report states that felony 

preliminary hearing procedures apply to the misdemeanor probable cause determination. 

One additional comment is in order concerning defendant’s preliminary hearing 

analogy intention. At oral argument, defendant argued section 991 is a mere four 

sections away from section 995. Thus, defendant reasoned the Legislature intended a 

detained misdemeanant accused may secure dismissal of an individual count pursuant to 

section 991. Sections 991 and 995 are codified in title 6 of the Penal Code which is 

entitled, “Pleadings And Proceedings Before Trial.” Chapter 1 of title 6, in which section 

991 appears, is entitled, “Of The Arraignment Of The Defendant.” Section 995 is not in 

chapter 1 of title 6. And for good reason, section 995 is not an arraignment relatedprovision. Rather, section 995 appears in chapter 2 of title 6 which is entitled, “Setting 

Aside The Indictment Or Information.” Accordingly, sections 991 and 995 appear in 

separate chapters directed at different stages of the criminal proceedings. The two 

statutes serve different purposes and are derived from disparate times in our state’s 

history. With respect, defendant’s legislative intent propinquity proposition is 

unpersuasive. 

Finally, in engaging in construction of all statutes, ambiguous or otherwise, the 

most important consideration is the language chosen by the Legislature. (In re Ethan C., 

supra, 54 Cal.4th at p. 627; Pineda v. Williams-Sonoma Stores, Inc., supra, 51 Cal.4th at

pp. 529-530.) As noted, section 991 only refers to dismissal of the entire complaint. 

Thus, if there is sufficient ambiguity to warrant judicial construction, the words 

referencing dismissal of the complaint selected by the Legislature in section 991 
20

conclusively resolve the issue. (§ 991, subd. (d) [“If the court determines that no such 

probable cause exists, it shall dismiss the complaint and discharge the defendant.”].)

In a similar vein, section 991, subdivision (d) makes little sense if defendant’s 

statutory construction is adopted. Section 991, subdivision (d) states in part: “If, after 

examining these documents, the court determines that there exists probable cause to 

believe that the defendant has committed the offense charged in the complaint, it shall set 

the matter for trial. [¶] If the court determines that no such probable cause exists, it shall 

dismiss the complaint and discharge the defendant.” If probable cause is not present, the 

complaint must be dismissed and the defendant discharged. No other reading of section 

991, subdivision (d) is plausible. Defendant’s theory, which allows for dismissal of not 

all the counts but no discharge of an accused, cannot be supported by the statutory 

language. Defendant does not argue that he would be entitled to discharge because two 

of the three counts were dismissed. Thus, the “discharge the defendant” language cannot 

apply to defendant. Yet that is the precise language (“discharge the defendant”) utilized 

by the Legislature. Section 991, subdivision (d) does not speak to what occurs when less 

than all the counts are unsupported by probable cause and dismissed. And the reason for

this is that section 991 is designed to enforce the Fourth Amendment custody protections 

available to misdemeanants articulated in Gerstein and Walters. The statutory language, 

the best indication of legislative intent, does not support defendants’ theory that section 

991 allows dismissal of less than all of the counts. For these collective reasons, I reach 

the same conclusions as did the appellate division.

TURNER, P. J.