People v. Bracey

• Decision Date: 20 January 1994
• Docket Number: No. F018460,F018460
• Citation: 21 Cal.App.4th 1532,26 Cal.Rptr.2d 730
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Appellant, v. William Henry BRACEY, Defendant and Respondent.

Page 730

26 Cal.Rptr.2d 730

21 Cal.App.4th 1532

The PEOPLE, Plaintiff and Appellant, v. William Henry BRACEY, Defendant and Respondent.

No. F018460.

Court of Appeal, Fifth District, California.

Jan. 20, 1994.

Rehearing Denied Feb. 18, 1994.

Review Denied April 27, 1994.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson, Asst. Atty. Gen., Michael J. Weinberger and Robert D. Marshall, Deputy Attys. Gen., for plaintiff and appellant.

Alys Briggs, Sacramento, under appointment by the Court of Appeal, for defendant and respondent.

THAXTER, Associate Justice.

On these facts:

A felony probationer, in violation of the terms of probation, commits a new offense;

The prosecutor files felony criminal charges for the new offense;

While a probation revocation hearing is pending, the prosecutor voluntarily dismisses the new case;

After hearing, probation is revoked and reinstated without imposition of a prison commitment;

The prosecutor refiles felony criminal charges for the new offense;

we hold that a presumption of "vindictive prosecution" does not arise and, absent evidence of actual vindictiveness, the probationer's due process rights have not been violated.

PROCEDURAL HISTORY

This is a People's appeal from a superior court order dismissing the instant prosecution in furtherance of justice. (PEN.CODE, § 1385¹, subd. (a). ²)

On February 14, 1991, defendant and respondent William Henry Bracey, having pleaded guilty to a violation of Health and Safety Code section 11350 in Kern County case No. 43718A, was placed on three years' probation, including nine months of jail time. Among the stated probation conditions were that Bracey "refrain from further violations of the law" and that he "refrain from the use and possession of, nor have under his/her control, any narcotic, restricted dangerous drug, marijuana, or hallucinogenic drug...."

On November 30, 1991, Bracey was arrested for allegedly selling rock cocaine to an undercover police officer. He was charged with violating Health and Safety Code section 11352 and, after a preliminary hearing, was held to answer in superior court case No. 48339A. He pleaded not guilty on December 30, 1991, and the case was set for jury trial on February 10, 1992. Bracey was notified that the new offense would be used as a basis for revoking his probation in case No. 43718A.

At the time set for jury trial on the new case, Deputy District Attorney Craig Smith moved to dismiss and the court granted the motion. A formal probation revocation hearing was set in the earlier case and was eventually held on March 11, 1992. Both the undercover officer and Bracey testified. After hearing the evidence, the court ordered probation revoked and reinstated on the condition that Bracey serve 1 year in jail, less 153 days of credits. Smith, representing the People, unsuccessfully urged the court to impose a state prison sentence.

The following day, March 12, 1992, Smith refiled the Health and Safety Code section 11352 charge against Bracey. ³ Bracey was ultimately held to answer in superior court on that charge in the instant case. On June 19, 1992, Bracey filed a notice of motion to dismiss or, in the alternative, a request to consider dismissal on the court's own motion. ⁴ Opposition was filed.

On July 2, the court held a hearing on Bracey's motion. After first ruling that it could not grant Bracey's motion to dismiss, the court stated it would consider his request to dismiss on its own motion under section 1385. The court reviewed the procedural history of the case and then asked the prosecutor to "enlighten the Court in this particular situation as to what the basis was for dismissing the case and then filing the case the day after the revocation proceeding." The prosecutor presented the testimony of Deputy District Attorney Smith.

Smith explained that his position with the district attorney's office was funded by a federal grant entitled "The Kern Anti Drug Abuse Project." One of his tasks, as specifically required by the grant, "is to put people who are on felony probation in state prison, that's stated explicitly in the grant, if they are within the target offenders designated by the grant." Those "target offenders" are "offenders who are on felony probation for a drug offense, like [Health and Safety Code sections] 11350, 11351, 11352, who commit another felony or another misdemeanor."

Smith testified that "The Kern Anti Drug Abuse Project" policies require, when a probation revocation hearing is pending, that prosecution on the secondary offense be dismissed.

"The Kern Anti Drug Abuse Project, it requires that I dismiss the case if it has been filed. If it has not been filed and the law enforcement department who have arrested the person wishes it to be filed, I reject it so that it is never filed.

"Once that has happened, either dismissing the case or not filing the case, I then ask the probation department to revoke their probation based upon a declaration letter."

The goal of this policy is the imprisonment of repeat offenders through the probation revocation process, rather than via the more expensive route of a new criminal proceeding.

"The whole objective of this grant is to do away with a great majority of cases that would have gone through arraignment, preliminary hearing, arraignment in superior court, motions, readiness, and jury trial, that's what this whole objective is, and yet still have the person go to prison."

In furtherance of this goal, Smith had processed around 1,000 probation revocations over the past year. Of those cases, "fifteen or twenty times" the court hearing the revocation proceeding failed to impose prison time. In only one instance when the revocation hearing did not result in imprisonment did Smith choose not to file new criminal In Bracey's case, Smith dismissed the original charge in accordance with "The Kern Anti Drug Abuse Program" policy. No promises or plea bargains were offered to Bracey in exchange for the dismissal. Smith testified that following the probation revocation hearing, he refiled for several reasons.

charges based on the conduct leading to the revocation hearing. ⁵

"In this case it was multitude of reasons, the first being that, according to the objectives of my project, he was not given prison; number two, that the new offense that he committed was a violation of Health and Safety Code 11352, which is sales of cocaine, which carries a term of, upper term of, four years. Not only that if Mr. Bracey reoffends in the future and he's convicted of Health and Safety Code 11352, that's a three year enhancement; number three, this was a very solid case.

"There was no evidentiary problems involved in the case whatsoever from my viewpoint from my handling of the case. And I spoke to the witness that testified in the case, and I saw him testify before Judge Kelly [at the revocation hearing] and I felt there were no problems in the case. Therefore, filing the case and taking it to trial would not be a problem especially because I only called one witness, and I think there were other witnesses that could have helped the case, but given the fact that it's preponderance burden of proof, I didn't feel that that was warranted in the revocation proceedings. Those were a couple of reasons.

"The other reason is that I spoke to the probation officer who was in charge of supervision of Mr. Bracey, and he felt that the new charge should be filed and that was because Mr. Bracey has--was given a long sentence originally and once he was revoked and given a year, that ate up a great deal of his time, i.e. the most he could get was three years.

"If he was sentenced to one year originally and then he was sentenced to another year on the revocation, he only has a one year window. Therefore, on the worst case scenario, if I refiled and he gets local time again on that new case, he's only eaten up one year. And so it's out of my hands right now, out of my project's hands what happens to Mr. Bracey on the new case. However, if he reoffends and is found in violation of Health and Safety Code 11352, then that's a four year upper term. And so based upon all that I felt justified in refiling the case."

Smith also testified that the dismissal had been a "mistake" because it was not until the probation revocation hearing date that he realized the new case involved a sale directly to an undercover officer rather than mere possession.

After taking the matter under submission, the court issued an order dismissing the case. Section 1385 directs that "[t]he reasons for the dismissal must be set forth in an order entered upon the minutes." Consequently, the court explained its reasoning in dismissing the action as follows:

"e. The court finds that California Penal Code § 1385 [sic ] and § 999 permit the filing of a second Complaint after a prior dismissal of a Complaint based upon the same alleged circumstances. The right of the prosecution to refile is conditional upon the defendant's constitutional right to due process being carefully adhered to.

"f. This court finds that the filing of the charges on March 12, 1992, the day after the prosecution was unsuccessful in having the defendant sentenced to State prison at the revocation hearing, was an act of vindictive prosecution. A defendant shall be free from the fear of retaliatory motivation which may deter a defendant who is subjected to a probation revocation proceeding. In the present case the defendant was denied due process which is the basis of the court's ruling to dismiss case number 50216."

DISCUSSION

1. Standard of review

While a trial court has broad discretion to dismiss under section 1385, the power is not absolute. It is limited by the amorphous concept that the dismissal be "in furtherance of justice," which requires consideration of the constitutional rights of the defendant and the interests of society represented by the People. (People...