Does the local wobbler rule violate the equal protection principle?

In concluding that the local wobbler rule at issue here does not violate the separation-of-powers doctrine simply because it makes a defendant's eligibility for diversion dependent, in part, on the offense which the prosecutor charges, we in no way imply that a prosecutor has untrammeled discretion to overcharge a case in order to render a defendant ineligible for diversion. If a prosecutor charges a defendant with a felony and, after the preliminary hearing, it is found that the facts do not establish probable cause to hold the defendant to answer for the charged felony but only for a divertible misdemeanor, the fact that the prosecutor had initially charged a felony would not, in itself, necessarily preclude diversion. (Cf. People v. Hudson (1983) 149 Cal.App.3d 661, 665-666, 197 Cal.Rptr. 36.) But when the evidence does establish probable cause to believe[757 P.2d 25] that the defendant has committed conduct which is punishable as a felony--as will be the case whenever a defendant is held to answer on a wobbler charge--the fact that [46 Cal.3d 87] the magistrate or other judicial officer concludes, in the exercise of his discretion under section 17, subdivision (b)(5), that only a misdemeanor charge is warranted--or that a jury, after trial, convicts the defendant only of a misdemeanor (see People v. Hudson, supra, 149 Cal.App.3d 661, 197 Cal.Rptr. 36)--does not demonstrate the impropriety of the prosecutor's charge so as to render the defendant eligible for diversion.

Accordingly, we conclude that the challenged wobbler rule does not violate the separation-of-powers doctrine.

Finally, we also reject defendant's claim that the local wobbler rule violates equal protection principles. As we have explained at some length above, the rule at issue here--which treats defendants differently depending on whether the prosecutor decides to charge them with a felony or with a misdemeanor--is no different than any other legislative rule which accords differential treatment to an individual depending on whether a prosecutor believes a greater or lesser charge is appropriate. So long as there are sufficient facts to demonstrate probable cause that the defendant has committed the elements of a crime which may be charged as a felony, the defendant can claim no denial of equal protection from the fact that the prosecutor may in other cases exercise his discretion to charge only a misdemeanor when he believes more lenient treatment is warranted. The equal protection clause, of course, has never been thought to abrogate a prosecutor's authority to exercise leniency in the charging process. (See, e.g., Oyler v. Boles (1962) 368 U.S. 448, 456, 82 S.Ct. 501, 506, 7 L.Ed.2d 446; Murgia v. Municipal Court (1975) 15 Cal.3d 286, 296-297, 124 Cal.Rptr. 204, 540 P.2d 44.)