San Diego Law Review


Richard H. Bein

Library of Congress Authority File


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In 1966, the California Supreme Court rendered its decision in Kellet v. Superior Court, 63 Cal. 2d 822, 409 P.2d 206, 48 Cal. Rptr. 366 (1966). This decision had a dramatic effect upon the pleading practices of prosecutions in California; it defined how and when a defendant should be charged with a misdemeanor when the defendant is charged also with a felony which was committed at the same time as the misdemeanor. Kellet’s affect on the criminal pleading practice resulted from the court’s harmonizing of certain sections of the California Penal Code. Though few prosecutors, defense attorneys and trial judges were excited by the result reached in Kellet, many were startled by the interpretation which the court gave to the relevant sections, and with the direction that misdemeanors–in any type of case or under any circumstance–be joined as separate counts with felony charges in the superior court. Several years have passed since the Kellet decision was rendered. Nevertheless, it has been this writer’s experience that both real and hypothetical questions are still presented from the prosecution’s attempt to follow the teachings of this case. It will be the purpose of this Article to analyze and explore the theory and practice of joining misdemeanors with felonies in complaints before magistrates, in informations, and in indictments .

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