People v. Curtiss, Cr. 17222

• Decision Date: 05 February 1970
• Docket Number: Cr. 17222
• Citation: 4 Cal.App.3d 123,84 Cal.Rptr. 106
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. Ann CURTISS, Defendant and Respondent.

Page 106

84 Cal.Rptr. 106

4 Cal.App.3d 123

The PEOPLE of the State of California, Plaintiff and Appellant, v. Ann CURTISS, Defendant and Respondent.

Cr. 17222.

Court of Appeal, Second District, Division 1, California.

Feb. 5, 1970.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Evelle J. Younger, Dist. Atty., Harry Wood and Robert J. Lord, Deputy Dist. Attys., for plaintiff and appellant.

Richard S. Buckley, Public Defender, James L. McCormick, Kenneth Cotton, and Harold E. Shabo, Deputy Public Defenders, for defendant and respondent.

GUSTAFSON, Associate Justice.

The defendant was charged by information with grand theft (in violation of subdivision 3, section 487 of the Penal Code) and with unlawfully taking or driving a vehicle without the consent of the owner (in violation of section 10851 of the Vehicle Code).

The evidence at the preliminary hearing discloses that the defendant rented an automobile for one week. The contract provided that the automobile would not be taken out of the state. Nearly three months after the automobile should have been returned, the defendant was located in Georgia with the car and extradicted to California. No defense was presented at the preliminary hearing.

On arraignment in the superior court the following occurred:

'THE COURT: I notice that this is a car rental agency. Are we running another collection agency here?

'MR. FINNERTY (Deputy District Attorney): Pardon me?

'THE COURT: You might as well kill it. It will never see the light of day.

'* * *

'If it's a car rental deal, we are running a collection agency.

'MR. FINNERTY: It is a car rental deal.

'* * *

'THE COURT (to defense counsel): * * * (M)ake a motion to dismiss the case and I will dismiss it.

'MR. COTTON (defense counsel): I make a motion to dismiss, your Honor.

'THE COURT: We are not running a collection agency here. The motion to dismiss is granted.'

The plaintiff appeals pursuant to subdivision 8 of section 1238 of the Penal Code from the order dismissing the case prior to trial.

The only issue raised on appeal is whether the trial court abused its discretion under section 1385 of the Penal Code in dismissing the information. That section provides: '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. No dismissal shall be made for any cause which would be ground of demurrer to the accusatory pleading'. ¹

Defendant urges that the trial court has absolute discretion in ordering a dismissal or in the alternative that the trial court did not abuse its discretion.

We do not believe the trial court has absolute discretion under section 1385 of the Penal Code. For example, the section itself prohibits a dismissal for any cause which would be a ground of demurrer to the accusatory pleading.

We acknowledge that there is language in some of the reported cases supporting the contention that the discretion is absolute. In People v. Superior Court (1921) 53 Cal.App. 185, 199 P. 840 it was said that a judge of the court in which an action is pending 'has jurisdiction to dismiss the action for any reason that (he) determines to be in furtherance of justice.' However, the only authority cited for this proposition was People v. More, (1887) 71 Cal. 546, 12 P. 631 which does not support the proposition that dismissal in furtherance of justice is authorized 'for any reason' that appeals to the judge ordering dismissal, but held only that the plaintiff had no power to appeal from an order by the superior court on its own motion dismissing a criminal action.

The 1968 amendment to Penal Code, section 1238 added subdivision 8 which gives the People the power to appeal from an order of dismissal if the defendant has not been placed in jeopardy or if he has waived jeopardy. (See People v. Superior Court (1968) 69 Cal.2d 491, 72 Cal.Rptr. 330, 446 P.2d 138.)

This amendment indicates to us that the Legislature, by section 1385 of the Penal Code, did not intend that a judge should have the absolute power to dismiss for any reason.

In the light of the importance to the administration of criminal justice of not having a case brought by the People of the State of California thrown out of court except for a reason which can be said to be that which would motivate a reasonable judge, we conclude that a judge does not have absolute discretion to dismiss a criminal case.

In People v. Superior Court (1968) 69 Cal.2d 491, 72 Cal.Rptr. 330, 446 P.2d 138 the Supreme Court noted that the discretion granted a trial court under section 1385 of the Penal Code is, and should be, very broad. The court went on to discuss some of the factors which a trial court should consider before dismissing a case after a verdict is rendered. The same principles should apply to dismissals before trial.

Factors the court mentioned include 'the weighing of the evidence indicative of guilt or innocence, the nature of the crime involved, the fact that the defendant has or has nor been incarcerated in prison awaiting trial and the length of such incarceration, (and) the possible harassment and burdens imposed upon the defendant by a (trial) * * *.' In that case, there was a 'long discourse on the evidence' showing that the trial court conscientiously considered the entire case. Here the judge merely expressed his opinion that the Legislature was not wise in permitting prosecution when a renter has stolen a car from a car rental agency.

The court below failed to set out any reasons in the minute order in compliance with section 1385 of the Penal Code. Long ago it was stated that an appellate court in reviewing an order of dismissal which does not contain the 'reasons of the dismissal' has 'no authority to disregard this requirement, or to hold that it is merely directory'. (People v. Disperati (1909) 11 Cal.App. 469, 105 P. 617.)

The Supreme Court recently said that when a judge orders a dismissal he 'must state his reasons in the minutes'. (People v. Superior Court (1968) 69 Cal.2d 491, 72 Cal.Rptr. 330, 446 P.2d 138.) The stated ground in the case at bench is in 'furtherance of justice',...