People v. Fretwell, Cr. A

• Decision Date: 30 April 1970
• Docket Number: Cr. A
• Citation: 87 Cal.Rptr. 356,8 Cal.App.3d Supp. 37
• Court: California Superior Court
• Parties: 8 Cal.App.3d Supp. 37 The PEOPLE of the State of California, Plaintiff and Appellant, v. Wayne Allen FRETWELL, Defendant and Respondent. 238. Appellate Department, Superior Court, Santa Clara County, California

Page 356

87 Cal.Rptr. 356

8 Cal.App.3d Supp. 37

The PEOPLE of the State of California, Plaintiff and Appellant, v. Wayne Allen FRETWELL, Defendant and Respondent.

Cr. A. 238.

Appellate Department, Superior Court, Santa Clara County, California.

April 30, 1970.

Louis P. Bergna, Dist. Atty., and Frank J. Prohaska, Deputy Dist. Atty., for plaintiff and appellant.

No appearance for defendant and respondent.

OPINION

De MARCO, Judge.

This is an appeal by the People from an order of the Municipal Court, San Jose-Milpitas Judicial District, dismissing the charge against respondent, purportedly in furtherance of justice according to Penal Code section 1385. Respondent had been charged with a special misdemeanor for violation of Vehicle Code section 21804 (failure to yield right of way). At trial before the court, the judge asked the deputy district attorney if respondent had been questioned at the scene of the accident which was the factual setting for the charges against him. The deputy district attorney answered that the respondent did furnish information for the vehicle report. A section 1385 dismissal was then ordered '* * * on the Court's own motion in view of the decision in Byers versus Justice Court.' Such is the extent of the very brief transcript now before us.

The thrust of the arguments for the People is two-fold. First, it is contended that the reliance of the trial court on the decision of the California Supreme Court in Byers v. Justice Court, 71 A.C. 1083, 80 Cal.Rptr. 553, 458 P.2d 465 (1969) as a ground for dismissal before the introduction of evidence by the prosecution was error. Second, they assert that dismissal according to Penal Code section 1385 is an abuse of discretion when utilized before any evidence is taken. We note preliminarily that this appeal by the People is properly before us according to Penal Code section 1466 subdivision (1)(a). Since no jury was impanelled, no witnesses were sworn and no plea of guilty was entered, jeopardy had not yet attached to this respondent. People v. Sturdy (1965) 235 Cal.App.2d 306, 314, 45 Cal.Rptr. 203.

Byers, which deals with problems of self-incrimination in a different context than the usual 'custodial interrogation' situation, does, by the doctrines set forth therein, enlarge the scope of the exclusionary rule prohibiting the use of incriminating statements. It seeks to expand the line of cases beginning with Marchetti v. United States (1968) 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 dealing with situations where a defendant is subjected to criminal prosecution for failure to comply with a statute which requires disclosure of potentially incriminating statements which may reveal guilt of some other criminal offense. In Byers, the defendant was prosecuted for failure to supply information to a police officer as required by Vehicle Code section 20002, in the case of an auto accident which resulted in property damage. It was the opinion of the court that even in auto accident cases, a 'substantial shadow of suspicion was cast upon persons regulated by the statute.' Byers, supra, 71 A.C. page 1090, 80 Cal.Rptr. page 558, 458 P.2d page 470. From this it could be seen that answers given in compliance with the statute, even if given for the purpose of determining civil liability, could become incriminating.

The result of the Byers decision was to recognize the power of a court to grant immunity from the use of statements given in compliance with informational statutes such as Vehicle Code section 20002 if no legislative immunity was granted. Where similar mandatory disclosures were required by statute in personal injury cases, the court noted that immunity had already been provided by the Legislature. Vehicle Code sections 20012, 20013. Accordingly, the court held that while the mandatory disclosure provisions of Vehicle Code section 20002 must be met, the court was bound to exclude all evidence elicited in compliance with the statute, including the fruits of that information. Byers, supra pages 1100--1101, 80 Cal.Rptr. 553, 458 P.2d 465.

Byers does not assert, however, that a dismissal must necessarily result if it is found that information required by law or subject to the required warnings is produced as evidence. Statements of the suspect which are not connected with a required accident report are admissible if they are made after the warning required by People v. Dorado (1964) 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361 is given. Statements subsequent to such warnings constitute a waiver of the privilege if they are knowing and intelligent. Miranda v. Arizona (1966) 384 U.S. 436, 444--445, 86 S.Ct. 1602, 16 L.Ed.2d 694. The mere fact that non-coercive questioning has taken place without the required warnings does not violate the rights of defendant unless information solicited thereby is used against him. People v. Varnum (1967) 66 Cal.2d 808, 812, 59 Cal.Rptr. 108, 427 P.2d 772. Statements made in a voluntary manner to police officers, before interrogation has begun, are not subject to the exclusionary rule (People v. Powell (1967) 67 Cal.2d 32, 50, 59 Cal.Rptr. 817, 429 P.2d 137) and Byers does not purport to change this.

Nor does Byers conclude that information independent of any which is subject to the privilege against self-incrimination cannot be used to support criminal charges. Statements from third-party witnesses such as other drivers, passengers or bystanders would be permissible as would be real evidence from pictures of the scene of an accident, fingerprints, paint transfers, tire marks, etc. It would appear highly illogical to suppose that the effect of Byers is to allow automatic exclusion of all evidence of the Vehicle Code violation by dismissal because some of the evidence was subject to the privilege.

A dismissal 'in furtherance of justice,' as authorized by Penal Code section 1385, is an exercise of judicial discretion exercised in view of the constitutional rights of the defendant and the interests of society. People v. Disperati, (1909) 11 Cal.App. 469, 476, 105 P. 617. This involves a balancing of many factors, including the weighing of the evidence indicative of guilt or innocence, the nature of the crime involved, the fact that the defendant has or has not been incarcerated in prison awaiting trial and the length of such incarceration, the possible harassment and burden imposed upon the defendant by a retrial, and the likelihood, if any, that additional evidence will be presented upon a retrial. People v....