People v. McGowan: Penal Code section 911 and the Crime of Possessing a Branded Milk Crate

I advise all people to never waive their right to consult an attorney before speaking with police.  In the rare circumstance I find myself among polite society, I usually receive a retort of, "why, if I haven't done anything wrong?".  This statement is the perfect setup to reveal the reason behind my advice, "you don't know whether you've done anything wrong".  

Case in point, did you know you can go to jail for 6 months for possessing a milk crate.  Yes, a milk crate.  If the crate has the name of a dairy upon it, it is a crime for you to possess it. And don't think of scraping the name off the crate, that's a crime too.  With that in mind, we turn to Mr. McGowan.  

Mr. McGowan was huddled under a blanket under the Santa Monica pier next to two milk crates.  The police arrested him and the district attorney charged him with three crimes: illegal camping, loitering, and possession of a milk crate.  At a Penal Code section 991 probable cause hearing, the magistrate determined there was no probable cause as to the camping and loitering charges.  The magistrate dismissed those two counts from the complaint and set the case for trial on the milk crate charge.

The government objected to the magistrate dismissing those counts for which there was no probable cause, taking the position that section 991 only authorizes the magistrate to dismiss the entire complaint if she finds no probable cause as to all counts.  The government's believes section 991 only allows for two outcomes, [1] if the magistrate finds no probable cause as to all counts, the entire complaint is dismissed and the defendant is let go, or [2] if the magistrate finds probable cause as to any count, a defendant stands trial for all counts in the complaint.  

The Appellate division of the Los Angeles Superior Court agreed with the government, ordering reinstatement of the previously dismissed camping and loitering charges.  The Second District Court of Appeal ordered that jurisdiction be transferred to herself and in a 2 to 1 decision, reverses.

The majority analogizes section 991 to sections 995 and 1385, two statutes with similar language which have been interpreted by the California Supreme Court to allow for dismissal of less than an entire pleading.  To the majority, section 991 was enacted as a judicial safeguard against a prosecutor overcharging a defendant to gain a tactical advantage.

The dissent takes the position that section 991 was enacted solely as a Fourth Amendment protection to insure persons arrested without any probable cause aren't subject to prolonged and unnecessary incarceration awaiting trial, a protection required by the then recent United States Supreme Court decision in Gerstein v. Pugh.