Esteybar v. Municipal Court

Opinion

WRIGHT, C. J.

In this case of first impression we are called upon to decide whether a magistrate, pursuant to Penal Code section 17, subdivision (b)(5), 1 may determine that an offense is a misdemeanor without first obtaining the consent of the prosecuting attorney. Since a prosecutor may not be vested with authority to foreclose the exercise of a judicial power, we have concluded that requiring his consent to determine that an offense is a misdemeanor violates the doctrine of separation of powers set forth in article III, section 1, of the California Constitution.

Petitioner, Dolores…