Horner v. Superior Court

• Decision Date: 07 December 1976
• Citation: 134 Cal.Rptr. 607,64 Cal.App.3d 638
• Court: California Court of Appeals Court of Appeals
• Parties: Leonard George HORNER, Petitioner, v. SUPERIOR COURT, LAKE COUNTY, Respondent; PEOPLE of the State of California, Real Party in Interest. Civ. 39196.

Page 607

134 Cal.Rptr. 607

64 Cal.App.3d 638

Leonard George HORNER, Petitioner, v. SUPERIOR COURT, LAKE COUNTY, Respondent PEOPLE of the State of California, Real Party in Interest.

Civ. 39196.

Court of Appeal, First District, Division 2, California.

Dec. 7, 1976.

David Nelson, Ukiah, for petitioner.

Evelle J. Younger, Atty. Gen. of the State of California, Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., Derald E. Granberg, Herbert F. Wilkinson, Deputy Attys. Gen., San Francisco, for respondent and real party in interest.

ROUSE, Associate Justice.

Petitioner stands charged by information with a violation of section 245 of the Penal Code ¹ (assault with a deadly weapon). He seeks a writ of prohibition to prevent further proceedings against him and/or a writ of mandate to compel respondent court to dismiss the action against him. The question presented to us for determination is whether section 1387, as amended, is a bar to the prosecution of a felony offense when charges based upon the same offense have been twice dismissed. In each instance such dismissal was upon application of the prosecuting attorney and granted under the authority of section 1385 (i.e., in furtherance of justice). Further, there is nothing in the record to show the discovery of new evidence so as to bring this case within the exception provided for in section 1387.

Two sections of the Penal Code are applicable in this proceeding. Section 1385 provides, in pertinent part, that 'The court may, either of its own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. The reasons of the dismissal must be set forth in an order entered upon the minutes.' Section 1387, upon which petitioner relied in his motion to dismiss, provides that 'An order for the dismissal of an action pursuant to this chapter is a bar to any other prosecution for the same offense if it is a felony and the action has been previously dismissed pursuant to this chapter, or if it is a misdemeanor; except in those felony cases where subsequent to the dismissal of the felony the court finds that substantial new evidence has been discovered by the prosecution which would not have been known through the exercise of due diligence at or prior to the time of dismissal.'

It is clear from the record and a stipulation entered into between counsel for petitioner and the prosecuting attorney at the hearing on the motion to dismiss that, prior to the refiling of a complaint on April 2, 1976, the same charges against petitioner had been previously dismissed upon the application of the prosecuting attorney on two occasions, once on August 14, 1975, in the justice court, and again on February 17, 1976, in the superior court. In its order denying the motion, the trial court found that 'Since the dismissal order made in the Justice Court on August 14, 1975, as recorded in the court minutes, did not purport to be made pursuant to § 1385 'in furtherance of justice' and was not supported by a statement of reasons for the order, it cannot be considered a dismissal pursuant to § 1385.'

In opposition to this petition, the People argue (1) that section 1387, as amended, should not be applied retroactively to take account of the first dismissal; (2) that the jurisdiction necessary to trigger a section 1385 dismissal is trial court jurisdiction, and that a justice court has no jurisdiction to entertain or order a dismissal of a complaint charging a felony offense; and (3) that petitioner did not demonstrate actual prejudice from the refiling of the charge.

We first address the question of the validity of the dismissal of August 14, 1975 which was made pursuant to section 1385. In its order finding the August 14, 1975 dismissal to be invalid, respondent court relied upon People v. Orin (1975), 13 Cal.3d 937, 945, 120 Cal.Rptr. 65, 70, 533 P.2d 193, 198, wherein the court referred to the mandatory nature of the provisions of section 1385 and held that 'failure to comply with the requirement of the statute that the reasons of the dismissal be set forth in the order is fatal and is alone sufficient to invalidate the dismissal.'

However, we note that, in Orin, no reasons were set forth in the order of dismissal; further, the court was unable to find anywhere in the record any reason stated which, by incorporation or reference, could be deemed to be the "reasons of the dismissal . . . set forth in an order. (People v. Orin, supra, pp. 944--945, 120 Cal.Rptr. p. 70, 533 P.2d p. 198.)

Here, the docket sheet of the justice court shows that the motion to dismiss the charge was made by the prosecuting attorney. ² A transcript of the proceedings of August 14, 1975, reveals that the reason for the dismissal was stated by the court to be 'in the interest of justice'; however, the reason for the dismissal was not recorded by the clerk in the minutes. ³

Moreover, this case is distinguishable from Orin, in that the dismissal order in Orin was made over the Objection of the prosecution. Here the dismissal was ordered by the court on motion of the prosecuting attorney, the true reason being that the prosecution was unable to proceed. In Orin, the court noted a difference when it is the prosecutor's own case which he is seeking to dismiss and does not intend to appeal, noting that 'Despite the defective procedure, no harm is done because the prosecutor obviously would not appeal from the order of dismissal.' (People v. Orin, supra, p. 945, fn. 10.) Under the circumstances shown, we hold the dismissal of August 14, 1975 to be valid.

We next consider the People's argument that section 1387, as amended by Statutes 1975, chapter 1069, section 1, effective January 1, 1976, should not be applied to encompass the dismissal of August 14, 1975, which occurred before the statute was amended. Prior to January 1, 1976, section 1387...