People v. Winters

• Decision Date: 30 June 1959
• Docket Number: Cr. A
• Court: California Superior Court
• Parties: 171 Cal.App.2d Supp. 876 PEOPLE of State of California, Plaintiff and Appellant, v. John WINTERS et al., Defendants, Melvin Chambers, Defendant and Respondent. 4066. Appellate Department, Superior Court, Los Angeles County, California

Page 538

342 P.2d 538

171 Cal.App.2d Supp. 876

PEOPLE of State of California, Plaintiff and Appellant, v. John WINTERS et al., Defendants Melvin Chambers, Defendant and Respondent.

Cr. A. 4066.

Appellate Department, Superior Court, Los Angeles County, California.

June 30, 1959.

Roger Arnebergh, City Atty., Philip E. Grey, Asst. City Atty., William E. Doran, Deputy City Atty., Los Angeles, for appellant.

Walter L. Gordon, Jr., Los Angeles, for respondent.

Loren Miller, A. L. Wirin, Los Angeles, Edward Mosk and Norman G. Rudman, Hollywood, amici curiae.

DAVID, Judge.

This is one of ten cognate cases, involving a total of twenty-eight defendants, of whom Melvin Chambers is one. The complaints charged the defendants with violations of California Penal Code sec. 330, making illegal, among others, the game of stud horse poker; of Los Angeles Municipal Ordinance 36674 (N.S.), prohibiting certain games not included in Pen.Code, sec. 330; and of Los Angeles Municipal Code (Ord. No. 77,000) sec. 43.13.2, prohibiting visits to a place where gambling is carried on.

The defendants were duly arraigned, and entered pleas of 'not guilty.' Prior to March 5, 1959, some defendants named in the complaints had been tried, convicted and fined; some others had entered pleas of 'guilty' but on the morning of March 5, 1959, were permitted to change their pleas to 'not guilty.' The cases were called for trial and it was determined they were ready for trial. The defendants to be tried were present, with counsel, and the People were represented by counsel. Without any other preliminaries, the court requested the defendants to step inside the bar, made the statements which are hereinafter related, and terminated the cases, saying, 'I am dismissing these cases, and I am dismissing them because of the reason that I believe that it constitutes discriminatory enforcement.' The People have appealed from such order of dismissal in each case.

Beyond doubt, where the laws have been enforced in a discriminatory manner, with the intent and purpose to deny the equal protection of the law to any persons or group of persons, a discriminatory enforcement of a statute fair on its face when established by adequate proof may invalidate an otherwise proper conviction. This is an appeal from a dismissal of an action without putting intentional discrimination in issue, and without the receipt of proof in an adversary trial.

The reporter's transcript reflects the following proceedings:

'Court: I want the following defendants to step forward, come inside the rail:

'Warner Isadore, Matthew Harrison, Roy Benson, William Flowers, George Barton, Isaac Johnson, Wilhem Ford, Alvin Armstrong, James Hutcherson, James Allen, John Hall, Craig Wilson, Oliver Moss, Leonido Easter, Prince Clay, Eural Bradford, Robert Lewis, Edward J. Davis, Melvin Chambers, Leon Scott, Marion Thomas, Frank Warren, Burrell Ford, Arthur Wilson, Hayne Chick, Roosevelt Jones, Edgar Askey, John Millender.

'Some three weeks or a month ago, this Court had the occasion to write a letter to the Chief of Police calling attention to the fact that, in this Court's opinion, the gambling laws of this city are enforced mainly against members of the Negro race.

'The Chief took exception to that statement and pointed out, by his statistics, that in the last two years 12,000 Negroes were arrested for gambling and 1,200 Caucasians. Of course, I know that the figures are deceptive because of the fact that the 1,200 Caucasians mentioned were arrested in areas other than the Central Los Angeles area: In Van Nuys and San Pedro and other areas.

'But, I also take great exception to what I term a discriminatory pattern of enforcement of the gambling laws of this city. It is my opinion they are enforced mostly against members of the Negro race. If I were to take the Chief's figures as they speak to this, it would lead me to believe that Negroes, who constitute 10% of the population of this city, are responsible for 90% of the gambling in this city. I refuse to believe that as the truth. I refuse to believe that the people who make their money off of gambling in this city are making it from the pennyante gambling that goes on in Negro homes and Negro districts.

'The Chief has also invited me to point out to him instances where gambling is going on unraided. Of course, I don't have to do that because that isn't my job. That is his job to ferret out gambling.

'But, I only have to say that gambling is going on in all sections of our city: All private clubs; it is going on in fraternal organizations; it is going on in every fight stadium on fight night in the first few rows of the ringside. Where men wave dollar bills at each other openly and notoriously, and under the view of the very officers that are present. And the exchange of money at the end of the bout--I strongly suspect it must be gambling.

'And I find some comfort in the case of People v. Gordon, recorded in 105 Cal.App.2d, District Court of Appeals--The page number is quite significant--Page 711 [234 P.2d 287]--Where that Court, on passing on another type of case, states that the deliberate or intentional discriminatory enforcement of the statute is a denial of the proper equal protection guaranteed by the Constitution.

'I take the view in this case, where, in one morning, we have twenty-five defendants that are here are all of one race, that constitutes nothing more, and nothing less, than discriminatory enforcement of the law.

'I am dismissing these cases, and I am dismissing them because of the reason that I believe that it constitutes discriminatory enforcement.

'This, of course, is not to say to these defendants that this Court is granting any license or privilege for you to go out and gamble. Because, I am against gambling in all its forms. But, I hope that the Chief will arrest you again if you go out and repeat your act of gambling. Because, I think that each and everyone of you are guilty of what you are here charged with. But, you are no guiltier than others who go unraided and do the same thing.

'I am not going to stand by and let these things go unnoticed.'

'(Applause by Court spectators.)'

Penal Code sec. 1385 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.'

Penal Code sec. 1387 provides: 'An order for the dismissal of the action, made as provided in this chapter, is a bar to any other prosecution for the same offense if it is a misdemeanor, but not if it is a felony.'

The minute order in each of these cases reads: 'Dismissed as to (naming defendant) in interest of justice'; or (in one case): 'Dismissed as to all defendants in interest of justice.'

A dismissal for any cause by a municipal court, including a dismissal in reliance upon Pen.Code sec. 1385, is appealable by the People so long as the defendant has not been placed in jeopardy. Pen.Code sec. 1466; People v. Baxter, 1953, 119 Cal.App.2d 46, 50, 258 P.2d 1093; cf. People v. Ring, 1957, 26 Cal.App.2d Supp. 768, 70 P.2d 281; People v. Banat, 1940, 39 Cal.App.2d Supp. 765, 100 P.2d 374.

In Penal Code sec. 1469, the powers of this reviewing court are stated: 'Upon appeal by the people the superior court may review any question of law involved in any ruling affecting the judgment or order appealed from, without exception having been taken in the trial court. * * * The superior court may reverse, affirm or modify the judgment or order appealed from, and may set aside, affirm or modify any or all of the proceedings subsequent to, or dependent upon, such judgment or order, and may, if proper, order a new trial. * * *'

It will appear, therefore, that in contrast to the uncontrolled discretion of a trial judge in a superior court, under Penal Code sec. 1385, the exercise of such a great power is fully subject to review upon appeal when an order of dismissal is made in the municipal court.

Even where the power of review is more limited, the appellate courts have not hesitated to state that dismissals made by trial judges under Pen.Code sec. 1385 have been an abuse of discretion, in view of the reasons which have been assigned to justify them.

In a gambling case, People v. Valenti, 1957, 49 Cal.2d 199, 316 P.2d 633, a witness interrogated by the judge in chambers stated he had arrested the defendant at night without a warrant, and thereafter had seized certain real evidence. As stated in the opinion, (49 Cal.2d at page 202, 316 P.2d at page 634): '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 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'.' Reviewing this order, the Supreme Court affirmed the dismissal. It held that the defendant could not be retried, because he had been placed in jeopardy, and that in the Superior Court a dismissal under Pen.Code sec. 1385, was not appealable. Nevertheless, it devoted many lines to the characterization of the judge's action (49 Cal.2d at page 204, 316 P.2d at page 635) as 'egregiously erroneous'.

In People v. Disperati, 1909, 11 Cal.App. 469, 472, 105 P. 617, 618, the district attorney made a motion to dismiss a case in furtherance of justice after the...