People v. Borousk, Cr. 20509

• Decision Date: 17 March 1972
• Docket Number: Cr. 20509
• Citation: 24 Cal.App.3d 147,100 Cal.Rptr. 867
• Court: California Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Appellant, v. Eugene R. BOROUSK, Jr., Defendant and Respondent.

Page 867

100 Cal.Rptr. 867

24 Cal.App.3d 147

PEOPLE of the State of California, Plaintiff and Appellant, v. Eugene R. BOROUSK, Jr., Defendant and Respondent.

Cr. 20509.

Court of Appeal, Second District, Division 5, California.

March 17, 1972.

[24 Cal.App.3d 150] David D. Minier, Dist. Atty., County of Santa Barbara, A. Barry Cappello, Asst.

Dist. Atty., and Zel Canter, Deputy Dist. Atty., for plaintiff and appellant.

Frank R. Crandall, Santa Barbara, for defendant and respondent.

REPPY, Associate Justice. CC PROCEDURAL AND FACTUAL HISTORY

In an information defendant was charged, in separate counts, with five violations of the Health and Safety Code: in count I with selling cocaine (§ 11501); in count II with possession of marijuana for sale (§ 11530.5); in count III with possession of marijuana (§ 11530); in count IV with possession of restricted dangerous drugs (§ 11910); and, in count V with possession of narcotic paraphernalia (§ 11555). The information alleged that the count I violation occurred on November 23, 1970, and all the others on December 18, 1970.

Originally (December 21, 1970) a complaint had been issued out of the municipal court charging defendant and one Mitchell, jointly, with the sale of cocaine and defendant singly with the other violations. The record indicates that Mitchell was not apprehended, so the information charged defendant only.

At the time of defendant's arraignment in municipal court, as disclosed by a later explanation made by defense counsel not challenged by the prosecution, an understanding apparently was reached that defendant would assist the sheriff's office in locating Mitchell and in apprehending other people engaged in drug traffic (defendant being released on his own recognizance on motion of the district attorney so that he could do so), that defendant would plead guilty to possession of marijuana (count III), and that when he did so, the other counts would be dismissed. At the time set for the preliminary hearing, February 23, 1971, defense counsel proposed that defendant enter a plea of guilty to possession of marijuana and that the prosecutor move to dismiss the other counts. After a brief recess, during which he evidently conferred with his superior, the deputy district attorney advised that the prosecution could not dismiss. So the preliminary examination was conducted. Defendant was held to answer on all five counts. At his arraignment in superior court on April 14, 1971, the Honorable Floyd C. Dodson presiding, despite what had occurred in municipal court, defendant entered a plea of guilty to count III (possession of marijuana). A defense request for dismissal of the other counts was again rejected by the People. Defendant entered pleas of 'not guilty' to the other counts. Apparently, then, in accordance with the current practice of the Santa Barbara Superior Court, the case was placed on the 'readiness settlement calendar' at which 'pretrial conferences' are conducted. The holding of this calendar occurred sometime between April 14 (date of plea) and April 27 (date of commencement of trial). At this session defense counsel set before Judge Dodson, who was presiding, his understanding of the 'plea bargain' which had been made. The district attorney ¹ stated that, according to a note in his file, defendant had ". . . mouthed off' to the deputy sheriffs . . ., and they were no longer able to work with him.' The trial court 'rejected (defense counsel's) argument . . . and sent the matter to trial.'

The case was tried on April 27 and 28 before a jury in department 4, the Honorable Arden T. Jensen presiding. The jury brought in a verdict of 'guilty' as to count V (possession of narcotic paraphernalia) and of 'not guilty' on counts II (possession of marijuana for sale) and IV (possession of dangerous drugs). It reported that it was unable to reach a verdict on count I (sale of cocaine), and it was discharged. The matter was continued to May 4, 1971, in department 4, for the purposes of entertaining an application for probation or pronouncing judgment and setting a date for retrial of count I. Defendant was released on his own recognizance. However, on May 4, the case came up in department 1, the calendaring department handled by Presiding Judge Dodson. ² Judge Dodson ordered 'that a two (2) day Jury trial be set to be called on the Readiness Settlement Calendar ³ on June 2, 1971 . . . in the Department of the Presiding Judge (department 1). . . .'

On June 2 'a discussion was had concerning whether the case should or should not be retried.' Evidently no determination was made in this regard because the case was continued to the readiness settlement calendar of June 16.

On June 14, 1971, a hearing was conducted on a 'Motion Brought by Court' to dismiss count I pursuant to Penal Code section 1385, ⁴ with respective counsel, who obviously had been summoned by court personnel, present. Judge Dodson presided. At the outset he asked if defendant were present, and defense counsel explained that he could not be located; that he (defense counsel), not then knowing of the current hearing, had only directed defendant to appear on the 16th. Judge Dodson observed that defendant's presence was 'not necessary.' Then, Judge Dodson, after briefly reviewing some of the past procedural history of the case, stated that he was 'relying upon the conversation (he) had with the trial judge and the memorandum . . . from (him) wherein he indicates (that defendant was charged as an accessory for aiding and abetting Mitchell as principal and) that unless . . . Mitchell is apprehended and tried along with (defendant), 'the chances of conviction are not 100 percent (and much less)' in the words of the trial judge.' Defense counsel stated that he would like to have the trial court dismiss the action on its own motion under section 1385 and, as required, have the reasons set forth in a minute order. The district attorney objected to such a step on the ground that Judge Dodson was not the trial judge, intimating a view that only the latter could dismiss under section 1385, and on the further ground that the trial court was basing its motion (and, apparently, would be its determination) upon the written memorandum of the trial judge 'who had no jurisdiction because he had returned the matter to department 1.' ⁵ The prosecution presented an affidavit executed by the jury foreman, ⁶ in which the foreman swears that initially the opinion of all the jurors was that defendant was guilty of count I, but it was decided to consider the other counts first so that minds would not be prejudiced; that doubts which came to the fore in the consideration of the other counts affected the consideration of count I; that its last poll as to count I stood 8 to 4 for conviction; that three of the four were ready to change their vote to 'guilty'; that because of tiredness and some confusion of the jurors and the position of the fourth juror, it was felt that further deliberation or voting would be fruitless; that he was of the belief that if count I had been prosecuted alone, the jury probably would have reached a verdict of guilty; and that if it were presented in the same manner in a retrial, any twelve jurors probably would convict. The district attorney argued that the trial court, by accepting the memorandum of the trial judge and not the affidavit of the jury foreman, would be ruling on the motion without all of the facts. Defense counsel objected to the trial court's receipt of the affidavit on the ground that it was a 'hearsay statement' in an attempt 'to . . . impeach something that wasn't even a verdict.' The trial court 'rejected' the affidavit 'as having no probative value' and as being inadmissible in that it 'would be an attempt to impeach a non-existent verdict.'

Defense counsel then listed various factors as reasons why the trial court should dismiss count I in the furtherance of justice:

(a) The district attorney had seen fit to move for the release of defendant on his own recognizance. Apparently the defense wished the trial court to infer from this that the prosecution did not consider defendant to be an inveterate criminal.

(b) Defendant had entered into the stated plea bargain and had pled 'guilty' to possession of marijuana.

(c) How the jurors had stood (absent the information in the foreman's affidavit, of course) was a matter of rumor. ⁷

(d) Defendant, who had been without steady employment, was trying to get part time work.

(e) Defendant would be harassed if another trial were held, bearing in mind the plea of guilty and the verdicts, two of not guilty and one of guilty, and the maximum punishments for the convictions of possession of marijuana (1 to 10 years in state prison) and of possession of narcotic paraphernalia (6 months in county jail).

(f) Trial congestion in the five departments of the superior court ('a year or a year and a half behind (in criminal cases) and even longer in civil cases') would be aggravated by a retrial of count I, the avoidance of such congestion being the 'classic' example of furthering the interests of justice.

The district attorney argued, in response to the court-congestion point, that he had offered to take the matter to a court trial which would take less time than the day and a half consumed by the original jury trial (probably less than a day); and, obviously alluding to the harassment point, he further stressed that the taxpayers of the county are concerned with criminals (such as sellers of cocaine) being on the streets.

Judge Dodson thereupon orally ordered count I dismissed pursuant to Penal Code section 1385 for the reason that '(t)he trial judge is of the opinion that it would be a waste of time of this court to retry this case without apprehending and charging . . . Mitchell' and for 'all the reasons stated by (defense counsel) which are now adopted by the Court.' He then directed that the matter would remain...