People v. Superior Court

• Decision Date: 18 December 1970
• Citation: 91 Cal.Rptr. 651,13 Cal.App.3d 672
• Court: California 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 SAN LUIS OBISPO, Respondent; Richard Donald SCHOMER, John Sevier Allen and George Reed Norvell, Real Parties in Interest. Civ. 37363.

Page 651

91 Cal.Rptr. 651

13 Cal.App.3d 672

PEOPLE of the State of California, Petitioner, v. The SUPERIOR COURT of the State of California IN AND FOR the COUNTY OF SAN LUIS OBISPO, Respondent Richard Donald SCHOMER, John Sevier Allen and George Reed Norvell, Real Parties in Interest.

Civ. 37363.

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

Dec. 18, 1970.

Robert N. Tait, Dist. Atty., County of San Luis Obispo, for People of the State of California.

No appearance for respondent.

No appearance for real parties in interest.

ALARCON, Associate Justice. ^*

The People petition for a writ of mandate to compel respondent superior court to set aside its order of October 9, 1970, dismissing criminal action No. 6920 against real parties in interest.

This Court issued an alternative writ of mandate on November 2, 1970. No return was filed in opposition to the issuance of a writ in this matter, nor did the respondent or the real party in interest appear for oral argument. No question has been raised as to the propriety of the issuance of a writ of mandate by this Court. We recognize that since 1968 the People may appeal 'From an order or judgment dismissing or otherwise terminating the action before the defendant has been placed in jeopardy or where the defendant has waived jeopardy' (Pen.Code, § 1238, subd. 8) and that mandate will not issue where an adequate remedy at law is available. However, a writ of mandate 'must be issued in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law' (Code of Civ.Proc., § 1086). We have concluded that the remedy at law is not an adequate remedy to resolve the problem raised by the action of the trial court in the instant matter. In dismissing the indictments the trial court suggested that it was considering taking similar action in 'several other cases now pending.' We have determined that the issuance of a writ of mandate is appropriate to prevent a multiplicity of appeals raising an identical jurisdictional question. Further, the action of the trial court in dismissing the indictments casts great doubt Without a ruling on the merits or an evidentiary hearing on the constitutionality of the method of the grand jury selection utilized in San Luis Obispo and on the validity of all pending indictments. Without a speedy determination by the court through an extraordinary writ of the issues presented in the petition, the District Attorney of San Luis Obispo will be forced to abandon the use of the grand jury for criminal investigations or risk a dismissal of each indictment pending the delay incident to an appeal. It is our view that the situation presented by the trial court's action in this matter and its apparent intention as to similar matters is of sufficient importance to the proper administration of criminal justice to require swift relief through a single writ (see, Lockhart v. Wolden, 17 Cal.2d 628, 633, 111 P.2d 319).

On September 2, 1970, an indictment was returned and filed in the Superior Court of San Luis Obispo County, charging real parties in interest (hereinafter referred to as defendants) on a number of counts with narcotics offenses in violation of the Health and Safety Code.

Defendant Norvell, on September 28, 1970, filed a notice of motion to quash indictment 'on the grounds that said Grand Jury is selected in an unconstitutional, impermissible and discriminatory manner and in such a way as to deprive Defendant of due process of law and the equal protection of the laws. Said motion will also be based upon the unconstitutionality of the statutes of the State of California which establish the Grand Jury system in that such statutes violate the due process clauses of the Federal and State Constitutions and the equal protection clauses of the Federal and State Constitutions.' The People filed a demurrer to this motion. Also, in response to a declaration of defendant Norvell's attorney to the effect that he intended to subpoena the entire 1970 grand jury venire, the district attorney filed a motion to quash subpoenas.

At a hearing held on October 9, 1970, the court sustained the People's demurrer to the motion to quash, with leave to amend within ten days, and then, over the objection of the People, the court on its own motion dismissed the action. The docket of the trial court shows the following entry: '10--9--70--Dft's Demurrer sustained--10 days given to amend. Entire action is ordered Dismissed & D.A. ordered to file new criminal complaint to be filed in Justice Court under Section 836 P.C.' ¹

The court's order was not based on any of the grounds set forth in section 995. ² Nor was the court's dismissal an order quashing the indictment on grounds asserted by defendant Norvell in his motion, ³ as to which there was no hearing on the merits. Apparently the court was purporting to exercise its power to dismiss pursuant to section 1385, Penal Code.

Section 1385 ⁴ 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.' Such a dismissal is a bar to any other prosecution for the same offense if it is a misdemeanor, but not if it is a felony. (Pen.Code, § 1387.)

Although the power given the trial court under section 1385 is very broad (People v. Superior Court, 69 Cal.2d 491, 502, 72 Cal.Rptr. 330, 446 P.2d 138), the discretion to be exercised is not absolute (People v. Curtiss, 4 Cal.App.3d 123, 125, 84 Cal.Rptr. 106). Such dismissal must be 'in furtherance of justice,' and the provision requiring the reasons to be set forth in the minutes is mandatory. 'If the reasons are not set forth in the minutes, the order dismissing may not be considered a dismissal under section 1385. (People v. Superior Court, Supra, 240 Cal.App.2d 90, 92, 49 Cal.Rptr. 365; see People v. Shaffer, 182 Cal.App.2d 39, 45, 5 Cal.Rptr. 844.)' (People v. Superior Court (Howard), Supra, 69 Cal.2d 491, fn. 7, p. 503, 72 Cal.Rptr. 330, at p. 338, 446 P.2d 138, at p. 146.) In People v. Disperati, 11 Cal.App. 469, 476, 105 p. 617, 620, the court states: 'the statute provides that the order 'as provided in this chapter's is not a bar, and the mandate in reference to said order is that it must contain the 'reasons of the dismissal.' We have no authority to disregard this requirement or to hold that it is merely directory. The proceeding is somewhat harsh, and imposes an additional burden upon the defendant, and no substantial departure from the plain provision of the statute should be tolerated.' The statutory requirement for entry of reasons for dismissal on the minutes is designed to protect the public interest against improper or corrupt ⁵ dismissals. (People v. Silva, 236 Cal.App.2d 453, 455, 46 Cal.Rptr. 87.) As stated in People v. Winters, 171 Cal.App.2d Supp. 876, 882, 342 P.2d 538, 542: 'A judge dismissing criminal charges without trial, upon his own motion, must record his reasons so that all may know why this great power was exercised, and such public declaration is indeed a purposeful restraint, lest magistral discretion sweep away the government of laws.'

More recently, the above rules have been restated in People v. Beasley, 5 Cal.App.3d 617, 637, 85 Cal.Rptr. 501, 514: 'The statement of reasons is not merely directory, and neither trial nor appellate courts have authority to disregard the requirement. It is not enough that on review the reporter's transcript may show the trial court's motivation; the Minutes must reflect the reason 'so that all may know why this great power was exercised.' (Citations.)' Further, at page 638, 85 Cal.Rptr. at page 515: 'The only statutory authorization, as well as the court's purported justification, for the dismissal was Penal Code, section 1385. Without the required statement of reasons therefore a dismissal under that section Is invalid. This is now established law. (Citations.)' (See also, People v. Superior Court (King), 249 Cal.App.2d 714, 717, 57 Cal.Rptr. 892; People v. Superior Court (Johnson), 240 Cal.App.2d 90, 92, 49 Cal.Rptr. 365; People v. Curtiss, Supra, 4 Cal.App.3d 123, 126--127, 84 Cal.Rptr. 106.)

The reporter's transcript discloses the court's reasons for its ruling. After ruling upon the People's demurrer, the trial court stated: 'Of course, the first point raised by the Defendants that the Grand Jury system is unconstitutional is not supported by the authorities. It has been sustained in every court, by the U.S. Supreme Court, and actually it affords any Defendant a greater quantum of protection than does the magistrate system * * * So, it would appear to the Court that this really--the tactics being indulged in by the Defendants is merely dilatory and would cause a great deal of delay and obstruction in bringing these young men to trial for the offenses for which they are charged. And, also, it would be a protracted proceeding in each one of the cases pending before the Court and would probably consume in each one of the cases--and there are several * * * maybe five days in each case in order to establish the record that he wishes to establish, which could consume may days of time in a very busy court. And this Court is aware that this county is greatly burdened, not only by trials, but also by a great number of writs, which are coming out of the Men's Colony, the prison here in the county, and also from the Atascadero State Hospital. * * *

'Now, the Court has consulted with counsel, and it has been indicated to the Court that a Preliminary Examination in this case could be conducted probably in half a day, and so in balancing the situation in the Court's mind, it would seem to be certainly in the interests of justice, rather than having a very protracted trial or a...