People v. Superior Court of Marin County

• Decision Date: 31 October 1968
• Docket Number: S.F. 22592
• Citation: 69 Cal.2d 491,72 Cal.Rptr. 330,446 P.2d 138
• Court: California Supreme Court
• Parties: , 446 P.2d 138 The PEOPLE, Petitioner, v. The SUPERIOR COURT OF MARIN COUNTY, Respondent; Loverd HOWARD, Real Party in Interest.

Page 330

72 Cal.Rptr. 330

69 Cal.2d 491, 446 P.2d 138

The PEOPLE, Petitioner, v. The SUPERIOR COURT OF MARIN COUNTY, Respondent Loverd HOWARD, Real Party in Interest.

S.F. 22592.

Supreme Court of California In Bank.

Oct. 31, 1968.

Rehearing Denied Nov. 27, 1968.

Thomas C. Lynch, Atty. Gen., Albert W. Harris, Jr., Asst. Atty. Gen., Derald E. Granberg, Deputy Atty. Gen., and Bruce B. Bales, Dist. Atty., for petitioner.

No appearance for respondent.

Jerome C. Durham, Public Defender, and Harold J. Truett, Deputy Public Defender, for real party in interest.

PETERS, Justice.

The People petition for a writ of mandate to compel respondent superior court to vacate an order dismissing an information in the interests of justice. (Pen.Code, § 1385.) It is our opinion that mandate is not available for this purpose, and for this reason the petition must be denied.

The facts are as follows: The trial judge dismissed the information on his own motion after the jury had returned a verdict finding defendant, Loverd Howard, guilty of two counts of robbery in the first degree. A transcript of the preliminary hearing has been furnished by the Attorney General but we have not been furnished a transcript of the trial. The trial judge filed a 24-page memorandum opinion and order of dismissal which discusses the evidence in detail. The following summary of the evidence is taken from that opinion.

The victims, Richard Lomax and Nanya Baker, testified that they were robbed by two youths as they left an apartment house in Marin City. At the trial they identified defendant as the one who did all the talking and who held a gun on them while his accomplice (said to be the younger brother of defendant) deprived them of their money. They had about 90 seconds to observe their assailants and shortly after the robbery they furnished a description to a police artist who prepared composite drawings of the robbers. The drawing of the person who had held the gun bore a notation indicating that the suspect was between 6 and 6 1 tall. Defendant is 5 10 tall. Richard Lomax thought the drawing was a 'close' representation of the person involved. Nanya Baker also said that the sketch was intended to depict the gun-wielding robber, but she testified that she had wanted to make some changes on the drawing but was not permitted to do so.

The sketch of the gun-wielding robber was admitted in evidence upon offer of the defense and upon objection of the prosecutor who urged that the drawing did not clearly represent defendant. Although the judge agreed that the sketch did not look like the defendant, he concluded that this was not a valid objection to admission and admitted it. The prosecutor in his argument to the jury stated that he had never seen a composite that looked like the person once he was apprehended and that he did not think anyone else had either. The trial judge, who had once been a prosecuting attorney, stated that in his opinion composites are often admitted in evidence at the request of the prosecution because of their close resemblance to a defendant, citing, for example, People v. Imbler, 57 Cal.2d 711, 716, 21 Cal.Rptr. 568, 371 P.2d 304.

The court identifications were preceded by pretrial identifications.

About two weeks after the crime, Lomax was called to the county jail to attend a lineup. He was asked to identify the one he thought was the 'gunman.' He looked through a peephole and observed four persons of different heights and weights standing on the other side of a steel door. He identified defendant. ¹ Lomax said he did not observe any particular physical characteristic.

Miss Baker also made a pretrial identification of defendant and his brother. This occurred at a sheriff's substation. There was no lineup. She observed only the two persons. She apparently first identified defendant's brother who was brought into a room alone. Then defendant was brought in, and she identified him. She also said that there was no outstanding physical characteristic noted by her at the time of the robbery that assisted her in making a positive identification.

The defense presented several alibi witnesses. The defendant took the stand and denied commission of the offense. In his direct examination, he was asked if he knew who had committed the crime. He answered that he had heard another person say he had committed the crime, and, although defendant at first refused to divulge the person's name, he subsequently identified the person as Jim Huff, a 15-year-old friend of his brother. The prosecutor then directed that Huff, who was outside the courtroom, be brought into the courtroom. Earlier in the trial, Lomax and Miss Baker had been asked on cross-examination whether they recognized any of four persons who sat in the rear of the courtroom, Huff was one of them, and neither Lomax nor Miss Baker indicated that they had ever seen Huff before.

The defense subsequently called Huff to the stand, but he asserted his privilege against self-incrimination. The prosecutor then pursuant to section 1324 of the Penal Code requested immunity, and Huff then testified that he had committed the crime charged against defendant with defendant's brother. Huff's recollection of the crime was at variance in some unspecified details with that of the victims. Huff is between 6 and 6 1 tall, and according to the trial judge looks as 'much like the composite drawing (perhaps more) as does the defendant.' The trial judge did not set forth the variances but commented that in light of his age and the circumstances of the robbery Huff could not be expected to remember everything that occurred. ²

Aside from the identifications, there is no other evidence to connect defendant with the crime. His fingerprints were not found at the scene, and he was not shown to have a gun or any of the stolen property.

The trial judge reasoned that the courtroom identifications were entitled to little weight because as pointed out in People v. Slobodion, 31 Cal.2d 555, 559--560, 191 P.2d 1, quoting from 4 Wigmore, Evidence (3d ed.) page 208, a witness' act of pointing out the defendant in the courtroom, after all that has intervened, is "of little testimonial force," that the identification of Miss Baker in the sheriff's substation could not be given much weight in view of the circumstances in which it occurred, that the weight to be given to Lomax's identification was reduced because in the lineup the persons were of different size and weight and apparently wore dissimilar clothing, that defendant should have been acquitted because of a reasonable doubt as to his guilt, that a comparison of the evidence at trial with that at the preliminary hearing shows that the prosecution had presented all of its evidence, that the identification testimony would not be admissible at a retrial under United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and that retrial would invite a miscarriage of justice.

The trial judge ordered the information dismissed in the interests of justice on the grounds: '(1) Insufficiency of the evidence to prove the defendant's guilt beyond a reasonable doubt. (2) Denial of defendants' Sixth Amendment right to counsel at a critical stage of the proceeding, thereby making retrial impermissible.'

Section 1385 of the Penal Code 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 for 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.' ³

Is mandate permissible to review the determination made under this section? We think not. Generally speaking, the writ of mandate is issued upon the verified petition of the party beneficially interested to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, duty, or station where there is no plain, speedy, and adequate remedy in the ordinary course of law. (Code Civ.Proc., §§ 1085, 1086; Flora Crane Service, Inc. v. Ross, 61 Cal.2d 199, 203, 37 Cal.Rptr. 425, 390 P.2d 193; Cornell v. Superior Court, etc., 52 Cal.2d 99, 103--104, 338 P.2d 447, 72 A.L.R.2d 1116.) Ordinarily the granting of this relief lies in the discretion of the court (see Flora Crane Service, Inc. v. Ross, supra, 61 Cal.2d 199, 203, 37 Cal.Rptr. 425, 390 P.2d 193; 3 Witkin, Cal.Procedure (1954) pp. 2472 et seq.). The question is whether mandate should be available to secure a review when the Legislature has determined there should be no appeal. In such a case the petitioner has not an inadequate right of appeal, but no appeal at all.

The Legislature has determined that except under certain limited circumstances the People shall have no right of appeal in criminal cases. (E.g., People v. Valenti, 49 Cal.2d 199, 205, 316 P.2d 633; People v. Superior Court, etc., 137 Cal.App.2d 194, 196, 289 P.2d 813.) An appeal may be taken by the People '1. From an order setting aside the indictment, information, or complaint; 2. From a judgment for the defendant on a demurrer to the indictment, accusation, or information; 3. From an order granting a new trial; 4. From an order arresting judgment; 5. From an order made after judgment, affecting the substantial rights of the people; 6.From an order modifying the verdict or finding by reducing the degree of the offense or the punishment imposed.' (Pen.Code, § 1238.) ⁴ An order of dismissal after trial under section 1385 is not made appealable.

The restriction on the People's right to appeal is not merely a procedural limitation allocating appellate review between direct appeals and extraordinary writs but is a substantive limitation on review of trial court determinations in criminal trials. (See People v. Valenti, supra, 49 Cal.2d 199, 205, 316 P.2d 633; People v. Knowles, 27 Cal.App. 498, 506--507, ...