People v. Valenti

Decision Date29 October 1957
Docket NumberCr. N
Citation49 Cal.2d 199,316 P.2d 633
CourtCalifornia Supreme Court
PartiesThe PEOPLE of the State of California, Plaintiff and Appellant, v. Joe John VALENTI, Defendant and Respondent. o. 6062.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., and John S. McInerny, Deputy Atty. Gen., for appellant.

Henry Mariani, A. F. De Marco and E. M. De Mattei, San Jose, for respondent.

SCHAUER, Justice.

The People noticed this appeal from an order of the superior court, made in the midst of a criminal trial by jury, 'dismissing * * * (the) Information on the grounds of illegality of the arrest of the defendant.' The order was not based upon any defect in the information or the proceedings which resulted in the filing of the information; rather, it was based upon the mistaken view that the prosecution should not continue because of the stated 'illegality of the arrest.' Defendant contends that the appeal should be dismissed because the subject order is not one of the orders or judgments comprehended in section 1238 of the Penal Code, which specifies the cases in which the People may appeal in a superior court criminal prosecution. The People urge that the order is appealable because it is within the language of subdivision 1 of section 1238, which provides for an appeal 'From an order setting aside the * * * information.' We have concluded that only by improperly strained and unnatural construction of the order and of section 1238 could we hold that such order is appealable, and that in any event a reversal herein would be futile because defendant has been in jeopardy within the meaning of the provision of the state Constitution (art. I, § 13) which forbids double jeapardy and, therefore, could not be tried again.

Defendant was charged with felonious wagering in violation of subdivision 6 of section 337a of the Penal Code. He pleaded not guilty and trial before a jury began. Seven witnesses called by the People testified. The eighth witness called by the People was sworn and testified that he was a law enforcement officer. The prosecuting attorney asked the officer whether he had arrested defendant. Before the witness replied, defense counsel requested the court 'to take a matter up in chambers.' The following proceedings concerning the legality of the arrest were had outside the presence of the jury:

The officer testified that he had arrested defendant without a warrant at night and described the circumstances which caused and attended the arrest and the incident seizure of real evidence. Without motion by or suggestion of either counsel, the judge ruled as follows:

'The Court is going to dismiss the information. I feel there was sufficient information that, had the Sheriff's Department wanted to obtain * * * a warrant * * * they could have done so and then that there would have been no question as to illegal (arrest and) search and seizure * * * I am dismissing the information at this time for insufficiency of the evidence, * * * based on the lack of reasonableness of the arrest.'

The prosecuting attorney protested, 'If your Honor please, rather than on the basis of insufficiency of the evidence, it is a question that I would like to attack on appeal since, as your Honor knows, the law is unsettled in that regard.' The trial judge persisted in his mistaken views 'that having chosen to arrest the man without a warrant, they did so at their peril that the evidence that was obtained might not have been admitted * * * I am going to dismiss the information on that basis * * * On the illegality of the arrest, that there was sufficient time to obtain a * * * warrant.' Defense counsel said nothing either in protest against or in acceptance of this novel procedure of 'dismissing the information' on the stated grounds.

Proceedings before the jury resumed. The judge said, 'I feel * * * that the case should not go to trial and there was no question to be presented to the jury and therefore the Court on its own motion dismissed the information.' The jury were discharged. The minutes state that the order is one 'dismissing said Information on the grounds of illegality of the arrest of the defendant.' There is no statutory authorization for any such action by a trial court and we know of no decision by any court of appellate jurisdiction in this state which holds or even suggests that when a defendant is illegally arrested for a public offense the illegality of the arrest permeates subsequent proceedings by which he is formally charged with the offense and tried on the formal charge. This court's holdings as to and discussions of the problems of illegal arrests, searches, and seizures (in the series of cases which began with People v. Cahan (1955), 44 Cal.2d 434, 282 P.2d 905, 50 A.L.R.2d 513) have been carefully limited to the view that evidence obtained by such unconstitutional means is inadmissible at the trial (People v. Cahan, supra, at page 444 of 44 Cal.2d, at page 910 of 282 P.2d; People v. Berger (1955), 44 Cal.2d 459, 462, 282 P.2d 509) and incompetent to support an accusatory pleading (Badillo v. Superior Court (1956) 46 Cal.2d 269, 271, 294 P.2d 23). If the illegally obtained evidence is received at the trial and effects a miscarriage of justice a judgment of conviction will be reversed on appeal. (People v. Tarantino (1955), 45 Cal.2d 590, 595, 597, 290 P.2d 505 (judgment of conviction affirmed on count as to which admission of illegally obtained evidence was not prejudicial, reversed on counts as to which admission of such evidence was prejudicial).) If the illegally obtained evidence is the sole basis of an indictment or information, defendant is held without reasonable or probable cause; his motion to set aside the accusatory pleading should be granted by the court in which he is arraigned on such pleading; and if the motion is improperly denied an appellate court will grant prohibition to halt proceedings under the accusatory pleading. (Badillo v. Superior Court (1956), supra, 46 Cal.2d 269, 271, 294 P.2d 23) But a defendant who has been subjected to illegal arrest, search, or seizure should not, by virtue of such illegality, gain immunity from punishment for the offense for which he was arrested or which was disclosed by the search.

Not only was the trial court mistaken in the stated belief that if a defendant was illegally arrested 'there was no question to be presented to the jury'; it was also mistaken in its suggestion that where an officer has reasonable cause to believe that a defendant has committed a felony he cannot properly arrest the defendant, at night, without a warrant. (Pen.Code, § 836 ('A peace-officer may * * *, without a warrant, arrest a person: * * * 5. At night, when there is reasonable cause to believe that he has committed a felony').)

The People suggest that because the order of dismissal was predicated upon serious errors as to the law concerning illegal arrest and illegally obtained evidence, an appeal should be allowed in order that such errors, in the interest of justice, may be corrected. However, if the order is not appealable under accepted rules concerning appealability, we should not by fiat announce that it is appealable merely because it is egregiously erroneous.

Normally, the right of appeal is statutory and a judgment or order is not appealable unless it is expressly made so by statute. (Title Ins. & Trust Co. v. California Dev. Co. (1911), 159 Cal. 484, 486, 114 P. 838; Collins v. Corse (1936), 8 Cal.2d 123, 124, 64 P.2d 137; Peninsula Prop. Co. v. County of Santa Cruz (1951), 106 Cal.App.2d 669, 675, 235 P.2d 635). 1 Section 1238 of the Penal Code designates the decisions in a criminal prosecution from which the People can appeal. The subdivision of that section which comes closest to being here pertinent is '1. From an order setting aside the indictment, information or complaint.' 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.' (See People v. Mitchell (1946), 27 Cal.2d 678, 686, 166 P.2d 10; People v. Wisecarver (1944), 67 Cal.App.2d 203, 210, 153 P.2d 778; People v. Brussel (1932), 122 Cal.App.Supp. 785, 787, 7 P.2d 403)

In the case at hand the information was not set aside for a defect in the proceedings leading up to the filing of such information. There was nothing before the trial court when it made its order 'dismissing said Information' to show whether defendant had been committed legally or for reasonable or probable cause. The effect of the order was not merely to set aside the information; it was to dismiss the action in the midst of trial. The subject of 'Dismissal of the Action for Want of Prosecution or Otherwise,' including dismissal 'in furtherance of justice' (Pen.Code, § 1385) is a subject dealt with in a portion of the Penal Code (pt. 2, tit. 10, ch. 8) other than the portion (pt. 2, tit. 6, ch. 2) which concerns the setting aside of an accusatory pleading and which includes section 995, ante.

It has often been recognized that an order dismissing an action is not within the terms of section 1238 and, therefore, is not appealable. In denying a hearing in People v. Knowles (1915), 27 Cal.App. 498, 506, 155 P. 137, this court 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...

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