Mitchell v. Superior Court

MOSK, J., Concurring.

I concur in the result of the majority opinion. However, I cannot agree with its criticism and evasion of a controlling decision of this court: Safer v. Superior Court (1975) 15 Cal.3d 230 [124 Cal.Rptr. 174, 540 P.2d 14] (hereafter Safer). Stare decisis requires a better fate for an authoritative opinion.

There is no question that a prosecutor may choose to charge a defendant under either Penal Code section 11229 or Code of Civil Procedure section 1209 “if the defendant were thereby deprived of his right to trial by jury” {Safer, 15 Cal.3d at p. 241, fn. 22). That is…