People v. Konow
| Decision Date | 09 October 2002 |
| Docket Number | No. D037680.,D037680. |
| Citation | 102 Cal.App.4th 1020,126 Cal.Rptr.2d 82 |
| Parties | The PEOPLE, Plaintiff and Appellant, v. Carolyn KONOW et al., Defendants and Respondents. |
| Court | California Court of Appeals Court of Appeals |
Paul J. Pfingst, District Attorney, Thomas F. McArdle, Anthony Lovett and Josephine A. Kiernan, Deputy District Attorneys, for Plaintiff and Appellant.
Michael J. McCabe, Los Angeles, under appointment by the Court of Appeal, for Defendant and Respondent Carolyn Konow.
Steven J. Carroll, Public Defender, under appointment by the Court of Appeal, Matthew Braner and Selena Dong, Deputy Public Defenders, for Defendant and Respondent Steven Rohrer.
Cynthia M. Sorman and Diane Nichols, San Diego, under appointment by the Court of Appeal, for Defendant and Respondent Amy Toosley.
Marianne Harguindeguy Cox, under appointment by the Court of Appeal, for Defendant and Respondent Daniel O'Neil.
The People appeal from the court's Penal Code section 9951 order dismissing criminal charges against Carolyn Konow, Stephen Rohrer, Amy Toosley, and Daniel O'Neil (collectively Defendants). We find the court erred on two alternative grounds: 1) the court erred because section 1385 does not confer a substantial right; and 2) the court erred because section 995 does not give the court the right to review a decision made by a coequal department of the superior court.
The People also urge us to address several other issues on which they prevailed. Because only an aggrieved party that suffers a prejudicial error can raise issues before the Court of Appeal,2 we do not address these issues.
Defendants operated and/or worked in the California Alternative Medical Center, which sold marijuana to patients for their medical conditions. In a felony complaint filed May 17, 2000, Defendants were charged with three counts of selling marijuana. (Health & Saf.Code, § 11360, subd. (a).)
A preliminary hearing was held on September 5, 2000, before Judge Michael D. William Mudd.3 All Defendants argued Proposition 215—"the Medical Marijuana Initiative"—implicitly authorized the distribution of marijuana by legitimate providers. (Health & Saf.Code § 11362.5.) Only Toosley and defendant Howard Rogers 4
argued there was insufficient evidence to hold them to answer. Judge Mudd dismissed the complaint against all remaining defendants on the following grounds: "1) statute is vague and ambiguous 2) denial of equal protection 3) denial of due process." Judge Mudd interpreted Health and Safety Code section 11362.5 to contemplate sales of marijuana to qualified patients. Because the statute was "poorly drafted," it "fail[ed] to put the charged parties in this case on notice of what is proscribed, thus violating due process." Taking judicial notice of four municipal ordinances implementing Proposition 215, he also found the statute violated equal protection because the "charging of the crime is based solely on the fact the defendants reside in San Diego, a county that is still trying to get a consensus on a piece of legislation that was passed in 1996." He also stated, "Again, I wonder why under the circumstances this falls into a criminal court." Finally, Judge Mudd ruled against Defendants' affirmative defenses of advice of counsel and official authorization.
The People then moved the superior court to reinstate the complaint under Penal Code section 871.5. On October 31, Judge Howard Shore granted the motion, deciding—as a matter of law—Defendants failed to establish any of the following affirmative defenses: implied defense under Health and Safety Code section 11362.5, mistake of law, reliance on advice of counsel, due process violation, and equal protection violation. Judge Shore directed the magistrate to determine whether the evidence presented proved Defendants sold marijuana in violation of Health and Safety Code section 11360, subdivision (a) and stated: "I have ruled on the issue of defenses and there will be no further discussion of defenses in front of Judge Mudd." At that point, the following colloquy occurred:
[Konow's counsel]: "You indicated that you were reversing the magistrate's determination or utilization of his power under [section] 1385 in so far [sic] as it relied on erroneous interpretations of the law. [¶] Do you mean by that that the magistrate may revisit that issue, if the exercise of discretion is not based upon an erroneous interpretation of the law, but upon his evaluation—neutral evaluation—of the circumstances, apart from such an interpretation?
The Court: "You mean can he find ways to get around my rulings?
[Konow's counsel]: "I guess so.
The Court:
On remand, Judge Mudd refused to consider Defendants' motion to dismiss the complaint under section 1385 because he had no authority to do so under Judge Shore's order. After stating his duty was to determine whether there was sufficient evidence to hold Defendants to answer, Judge Mudd ruled there was sufficient evidence. The People then filed an information charing Defendants.
Defendants then moved to set aside the information under section 995. The motion was heard and granted by Judge Wellington. Judge Wellington noted that although both parties stipulated Judge Mudd originally dismissed the complaint under section 1385, he found no evidence Judge Mudd had done so. Judge Wellington also found Judge Shore had not intended to eliminate Judge Mudd's section 1385 authority but merely limit him from dismissing the information on the constitutional grounds raised at the first preliminary hearing. Judge Wellington held Judge Shore had no authority to take away Judge Mudd's entire section 1385 power. Judge Wellington ruled Defendants were denied a substantial right of having the remand conducted by a magistrate able to exercise section 1385 authority; and he granted the section 995 motion and dismissed the information because he found the record showed Judge Mudd would have dismissed under section 1385 had he believed he had the authority to do so.
The court erred by granting Defendants' section 995 motion because section 1385 does not confer a substantial right upon Defendants. Section 995, subdivision (a)(2)(A) provides that the court shall set aside an information if "the defendant had not been legally committed by a magistrate." " (Jennings v. Superior Court (1967) 66 Cal.2d 867, 874, 59 Cal.Rptr. 440, 428 P.2d 304.) Substantial rights include cross-examination and presentation of an affirmative defense (id. at pp. 874-875, 59 Cal.Rptr. 440, 428 P.2d 304); the right to effective counsel (People v. Coleman (1988) 46 Cal.3d 749, 773, 251 Cal.Rptr. 83, 759 P.2d 1260); a one-session preliminary examination (People v. Bucher (1959) 175 Cal.App.2d 343, 346 P.2d 202); the exclusion of unauthorized persons from the courtroom during the hearing (People v. Elliot (1960) 54 Cal.2d 498, 6 Cal.Rptr. 753, 354 P.2d 225, overruled on another ground in People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529, 165 Cal.Rptr. 851, 612 P.2d 941); an open preliminary hearing (People v. Pompa-Ortiz, at p. 523, 165 Cal.Rptr. 851, 612 P.2d 9415); the magistrate's review of wobblers (Hartman v. Superior Court (1982) 135 Cal.App.3d 205, 185 Cal.Rptr. 182); and the due process right to mental competence (Hale v. Superior Court (1975) 15 Cal.3d 221, 228, 124 Cal.Rptr. 57, 539 P.2d 817).
Section 1385 does not confer a substantial right upon Defendants because, unlike the rights listed above, section 1385 confers no rights upon Defendants. Section 1385, subdivision (a) provides in part: "[T]he judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed." (Italics added.) The statute does not confer a statutory privilege upon defendants to move to dismiss an action; that privilege is limited to the court and the prosecuting attorney. (See, e.g., People v. Hernandez (2000) 22 Cal.4th 512, 522, 93 Cal.Rptr.2d 509, 994 P.2d 354.) Although a defendant may informally request the court to dismiss an action pursuant to section 1385 (People v. Ritchie (1971) 17 Cal.App.3d 1098, 1104, 95 Cal. Rptr. 462), (People v. Superior Court (Flores) (1989) 214 Cal. App.3d 127, 136, 262 Cal.Rptr. 576.)
We reject Defendants' contention that Defendants' right to invite the court to exercise its section 1385 power is a substantial right. In 1976, the Supreme Court stated in dicta that when a defendant invites "the court to exercise its power by an application to strike a count or allegation of an accusatory pleading, ... the court must consider evidence offered by the defendant in support of his assertion that the dismissal would be in furtherance of justice." (Rockwell v. Superior Court (1976) 18 Cal.3d 420, 441-442, 134 Cal.Rptr. 650, 556 P.2d 1101.) Later court...
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