People v. Ferrera

• Decision Date: 08 April 1957
• Docket Number: Cr. 5803
• Citation: 309 P.2d 533,149 Cal.App.2d 850
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. John Kenny FERRERA, Defendant and Appellant.

Page 533

309 P.2d 533

149 Cal.App.2d 850

The PEOPLE of the State of California, Plaintiff and Respondent, v. John Kenny FERRERA, Defendant and Appellant.

Cr. 5803.

District Court of Appeal, Second District, Division 3, California.

April 8, 1957.

Hearing Denied June 4, 1957.

Morris Lavine, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., and Bonnie Lee Hansen, Deputy Atty. Gen., for respondent.

VALLEE, Justice.

By information defendant was accused in Count I of bookmaking, in Count II of keeping and occupying a residence with bookmaking paraphernalia for the purpose of recording bets on horse races, in Count III of receiving money for the purpose of betting, and in Count IV of recording a bet. Defendant's motion to dismiss under Penal Code, section 995, was denied. On motion of the People Count III was dismissed. In a jury trial defendant was found guilty as charged in Counts, I, II, and IV. He was fined $500 and placed on probation. He appeals from the judgment and the order denying his motion for a new trial.

Prior to the filing of the information on which the convictions were had, a complaint was filed accusing defendant of the identical offenses charged in the present information. After a preliminary hearing on that complaint defendant was held to answer and an information filed accusing him of the offenses. On motion of defendant under Penal Code, section 995, that information was dismissed. No appeal was taken from that order. A second complaint was filed and dismissed by the magistrate, apparently because the People did not have their evidence in court. Thereafter a third complaint was filed, a preliminary hearing held at which defendant was held to answer, and the present information filed. Defendant's motion to dismiss under section 995 was denied.

Defendant contends that order granting the motion to dismiss the first information is a bar to the present prosecution for the same offenses. The point is without merit. Referring to the motion under section 995, Penal Code, section 997, reads:

'The motion must be heard at the time it is made, unless for cause the court postpones the hearing to another time. * * * If the motion is granted, the court must order that the defendant, if in custody, be discharged therefrom; or, if admitted to bail, that his bail be exonerated; or, if he has deposited money, or if money has been deposited by another or others instead of bail for his appearance, that the same be refunded to him or to the person or persons found by the court to have deposited said money on behalf of said defendant; unless it directs that the case be resubmitted to the same or another grand jury, or that an information be filed by the district attorney; provided, that after such order of resubmission the defendant may be examined before a magistrate, and discharged or committed by him, as in other cases, if before indictment or information filed he has not been examined and committed by a magistrate.'

Section 999 reads:

'An order to set aside an indictment or information, as provided in this chapter, is no bar to a future prosecution for the same offense.'

'There is nothing in the statute [section 997] that would forbid a re-examination where the court had failed to order it, or that can be construed to mean that a resubmission is essential to the validity of a second indictment or information. That an order setting aside an indictment or information is no bar to a future prosecution is plainly declared in section 999.' People v. Breen, 130 Cal. 72, 74, 62 P. 408. The order dismissing the first information constituted no bar to the present prosecution. The magistrate had jurisdiction of the preliminary hearing on which the present information was based. The fact that the People did not appeal from the order granting the motion to dismiss the first information furnishes no ground for complaint on the part of defendant. No constitutional right of his is invaded by the present prosecution on a second information. People v. Godlewski, 22 Cal.2d 677, 680-83, 140 P.2d 381; People v. Dawson, 210 Cal. 366, 368-371, 292 P. 267; In re Begerow, 136 Cal. 293, 299-300, 68 P. 773, 56 L.R.A. 528; Patterson v. Police Judge's Court, 123 Cal. 453, 455, 56 P. 105; People v. Vacca, 132 Cal.App.2d 8, 9, 281 P.2d 315.

It is argued that the order granting the motion to dismiss the first information is res judicata under section 1908 of the Code of Civil Procedure. ¹ The point is not tenable. 'The distinction between civil and criminal actions is fundamental: a separate branch of the law covers crimes, jurisdiction of courts over criminal proceedings, and criminal procedure.' 1 Witkin, California Procedure, 494, § 9. The distinct character of civil and criminal proceedings necessarily precludes any general application of the doctrine of res judicata to successive criminal proceedings. 3 Witkin, California Procedure, 1942, § 58. Quoting from Ex part Clarke, 54 Cal. 412, the court in In re Begerow, 136 Cal. 293, 68 P. 773, 56 L.R.A. 528, speaking of a dismissal for failure to bring a criminal prosecution to trial within sixty days, said, 136 Cal. at page 297, 68 P. at page 775:

"But the order dismissing the prosecution ends the action commenced by the complaint upon which the magistrate issued his warrant of arrest. It ends the action, however, not by any judgment upon the merits of the case but by an order in the nature of a judgment of nonsuit, a simple expression of the opinion of the court that that particular proceeding ought not to be further prosecuted. Inasmuch as there is no limitation of time applicable to prosecutions for murder, and as a defendant in whose favor an order of dismissal of the action has been made has never been put in jeopardy within the meaning of the constitution, a new action on behalf of the people may, in such case, be initiated at any subsequent day, either by presentment of a grand jury or by a complaint filed with any magistrate."

Also see Penal Code, § 1387; People v. Head, 105 Cal.App. 331, 288 P. 106; People v. Romero, 13 Cal.App.2d 667, 57 P.2d 557; People v. MacCagnan, 129 Cal.App.2d 100, 276 P.2d 679. Section 999 of the Penal Code, not section 1908 of the Code of Civil procedure, controls. Cases in which the defendant was convicted or acquitted after a trial on the merits are not analogous. See People v. Beltran, 94 Cal.App.2d 197, 210 P.2d 238; 26 S.Bar J. 366. The order dismissing the first information is not res judicata.

On February 4, 1956 Officer Latimer, a deputy sheriff, was told by an anonymous informer that bookmaking was going on in Montebello and that the telephone number was RA 3-8013. He was told 'Ed' was the name to use in telephoning bets. A special agent of the telephone company gave Latimer the address at which the number RA 3-8013 was located as 730 1/2 South Garfield in Montebello and told him the address was described as that of Raymond Rogers.

Latimer and Deputy Sheriff Earl then went to South Garfield and found a long row of apartment houses. They asked the manager if Raymond Rogers lived at 730 1/2. They were told he did. Latimer and Earl then met two other deputies and had a conversation with them. During that time no one entered or left 730 1/2. Latimer went to a public telephone about two or three blocks from 730 1/2 and dialed RA 3-8013. A male voice answered and Latimer said 'This is Bill for Ed.' The voice responded, 'O.K.' Latimer then said, 'I would like to bet the second, Jay Frost, two to win, two to place. In the fourth, Count Lathey, one dollar to win, one dollar to place, one dollar to show. * * * The first, Ray Jewel parlay to the second Jay Frost, four dollars to win, four dollars to place. The seventh, Island Queen, one dollar to win, one dollar to place, one dollar to show. The eighth, Pay Section, three dollars to win and three dollars to place.' The male voice then stated, 'Is that all?' and 'O.K.' These were purported bets on horses running at Santa Anita that day.

Latimer and Earl, who was with him, drove back to 730 1/2 and met the two other deputies. During the time Latimer placed the telephone call the two other deputies sat in an automobile...