People v. Superior Court In and For Solano County

• Decision Date: 26 April 1962
• Docket Number: Cr. 4078
• Citation: 21 Cal.Rptr. 178,202 Cal.App.2d 850
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Petitioner, v. The SUPERIOR COURT of the State of California IN AND FOR the COUNTY OF SOLANO, Respondent, Duane Howard Kasparek, Real Party in Interest. PEOPLE of the State of California, Plaintiff and Appellant, v. Duane Howard KASPAREK, Defendant and Respondent. Civ. 20365 and

Page 178

21 Cal.Rptr. 178

202 Cal.App.2d 850

PEOPLE of the State of California, Petitioner, v. The SUPERIOR COURT of the State of California IN AND FOR the COUNTY OF SOLANO, Respondent, Duane Howard Kasparek, Real Party in Interest.

PEOPLE of the State of California, Plaintiff and Appellant, v. Duane Howard KASPAREK, Defendant and Respondent.

Civ. 20365 and Cr. 4078.

District Court of Appeal, First District, Division 2, California.

April 26, 1962.

Stanley Mosk, Atty. Gen., John S. McInerny, Albert W. Harris, Jr., Deputy Attys. Gen., San Francisco, for appellant.

Edmund Pahl, Fairfield, for respondent.

KAUFMAN, Presiding Justice.

The People present the same question, both by petition for writ of mandate in civil No. 20365, and by appeal from an order dated September 18, 1961, dismissing the action against defendant, Duane Howard Kasparek, in criminal No. 4078. On July 10, 1961, defendant was charged by information with petty theft, and with a prior conviction for petty theft in the Justice Court of Solano County in December, 1958. ¹ Defendant was arraigned on July 17, 1961, and on July 24, 1961, duly entered a plea of guilty to the information; no plea was entered as to the prior conviction. Defendant's counsel made a motion to have the matter referred to the probation officer for investigation and for delay in the pronouncement of judgment and sentence. This motion was granted and the matter further continued until September 18, at which time, the court made the following minute order: 'Now come Deputy District Attorney E. Glynn Stanley and the defendant and his counsel, Edmund Pahl, to the bar of this Court, this being the time set for further consideration of the report of the Probation Officer and for Pronouncing of Judgment and Sentence. Bernard Dion, Deputy Solano County Probation Officer, is duly sworn and makes his further report. The Court, upon hearing the testimony of Dr. Arnold R. Lewis, who is duly sworn, orders the case dismissed. Defendant is ordered released from custody.' On September 21, 1961, the People filed their notice of appeal from this order in criminal No. 4078, and on December 12 filed the petition for a writ of mandate in civil No. 20365.

The first question is whether the above mentioned order of September 18 dismissing the action is an appealable order. The right of appeal is statutory. A judgment or order is not appealable unless it is expressly made so by statute. Section 1238 of the Penal Code designates the decisions in a criminal prosecution from which the People can appeal. The People here contend that the subdivisions which are pertinent are: subdivision 1, which provides for an appeal 'From an order setting aside the indictment, information, or complaint' and subdivision 5, which provides for an appeal 'From an order made after judgment, affecting the substantial rights of the people.' Subdivision 1 of section 1238 has been generally understood to refer to an order setting aside the indictment or information on the grounds stated in section 995 of the Penal Code, i. e., in the case of an information on the ground 1) 'That before the filing thereof the defendant had not been legally committed by a magistrate' or 2) 'That the defendant had been committed without reasonable or probable cause.' In the case at hand, the order of dismissal was clearly not setting aside an information for such a defect in the proceeding. Furthermore, the effect of the order was not merely to set aside the information, but to dismiss the action. As no judgment was ever made or entered, the order of September 18 was clearly not an order after judgment under subdivision 5 of section 1238 of the Penal Code.

Rather, it appears from the record that the court was exercising its power to dismiss on its own motion pursuant to section 1385 of the Penal Code, which 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.' It is well recognized that an order of dismissal in furtherance of justice, pursuant to section 1385 of the Penal Code, is not within the terms of section 1238 and, therefore, is not appealable. In dismissing a similar appeal in People v. Valenti, 49 Cal.2d 199, 316 P.2d 633, 636 the Supreme Court, quoting from the opinion of this court in People v. Knowles, 27 Cal.App. 498, 506, 155 P. 137, said: "The cases in which an appeal may be taken by the people are specifically set forth in section 1238 of the Penal Code, and it is well settled that such an appeal will not lie except in a case so specified. The order here appealed from was both in form and in substance and effect one dismissing the action against this defendant. The only subdivision of section 1238 of the Penal Code, that could by any possibility be suggested as including the order before us is subdivision 1, which provides that an appeal may be taken by the people 'from an order setting aside the indictment or information.' As we have said, the order under consideration here was one granting a motion to dismiss the action. [It is to be noted that the court by this reiteration emphasized that the order in question was one dismissing the action.] The motion therefor was made on the trial, after issue joined on the merits by plea of not guilty, and was not based on any ground specified in our law as cause for setting aside an indictment, but was designed solely to prevent the further prosecution of the action * * *. The superior court had the power to dismiss the action, and the legislature having restricted the right of appeal by the people to certain specified cases of which this is not one, there can be no review of its action."

The order here does not purport to be one dismissing the action 'in furtherance of justice' but even if we assume it to be of such character, it would not, as such, be appealable. The...