*1 Cal.App.2d 750, 753-754 (1958) Court proc imprisoned under the indigent 766].) An jail as the indi confined in the same of mesne civil arrest is ess appointed coun gent undergoing is entitled who felon is who indigent misdemeanant sel under Gideon trial at which he imposed only after a serving a sentence constitu California’s appointed counsel under entitled to Smiley (1967) Cal.2d (In re tional standards. (1965) 62 179]; re Johnson Cal.Rptr. 427 P.2d 420.) A Cal.Rptr. 228, 398 P.2d 325, 329 process is as liberty civil deprived of his defendant who who is a defendant process law to due much entitled charged with crime. liberty he is deprived of because his opportunity without process of civil arrest The mesne process. due of counsel heard with the assistance to be discharged from the petitioner granted and writ is surety stand exonerated His will custody of bail. constructive final. this decision becomes when Burke, J., J., Mosk, J., Peters, J., Tobriner,
McComb, J., J., Sullivan, concurred. 31, 1968.] In Bank. Oct. F. No. 22592. [S. PEOPLE, Petitioner, v. THE SUPERIOR COURT
THE Respondent; LOVERD COUNTY, HOW MARIN OF Party in Interest. ARD, Real *2 General, Jr., Lynch, Attorney Harris, Albert W. C. Thomas Attorney P. Deraid General, Edward O’Brien Assistant Granberg, Deputy Attorneys General, Bales, and Bruce B. E. District Attorney, for Petitioner. Respondent. appearance for No Defender, Durham, Truett, Public and Harold J. Jerome C. Party Defender, Real in Interest.
Deputy Public PETERS, J. petition for a writ of mandate to respondent superior an order compel court vacatе dismiss- *3 (Pen. justice. Code, ing interests of an information the opinion 1385.) that mandate available for It is our § petition must purpose, this the be denied. and for reason this the facts as The trial dismissed The are follows: a jury his after the had returned on own motion information Howard, guilty finding defendant, Loverd of two verdict degree. transcript pre- robbery in the first A counts liminary hearing Attorney has furnished been General transcript The have not furnished a of the trial. but we been 24-page opinion and a order of trial filed memorandum following The dismissal which discusses the evidence detail. opinion. summary that taken from the evidence Nanya victims, Baker, and Richard Lomax testified youths thеy apart- left they that were robbed two City. they house in At the trial identified defend- ment Marin talking gun all held a as the who did and who on ant one accomplice younger (said while his to be the brother of them defendant) money. deprived They them their had about 90 shortly and seconds to their assailants the rob- observe pre- bery they description police a to a artist furnished who composite drawings pared drawing of the robbers. The gun indicating a person who had held the bore notation suspect was between 6' and 6'1" tall. Defendant 5'10" Richard thought person drawing tall. Lomax was a representation “close” Nanya involved. Baker depict gun- also sketch said that was intended to wielding robber, but she testified that she had wanted to make changes drawing permitted some on the but was not to do so. gun-wielding sketch robber was admitted in evi upon upon objection
dence offer of the defense and of the prosecutor drawing urged repre who that the clearly did not Although judge agreed sent defendant. that the sketch did not look like defendant, he concluded this was a objection prosecutor valid and admission admitted it. The argument in his composite to the stated that he had never seen a person appre looked like the he once was anyone think hended that he did not else either. The judge, prosecuting who had a attorney, once been stated opinion composites his are often admitted in evidence request prosecution-because at the of their close resem defendant, blance citing, example, to a Imbler, 304], Cal.Rptr. 568, 371P.2d preceded by pretrial The court identifications were identifi- cations. crime,
About two weeks after the Lomax was called to the county jail lineup. a identify attend He was asked to thought “gunman.” through he He one was looked a persons peephole heights and observed four different weights standing a the other side of steel door. He identi- any particular did fied defendant.1 Lomax said he not observe physical characteristic. pretrial
Miss Baker also made identification of defendant and his brother. This occurred at a sheriff’s substation. There lineup. only persons. appar- no observed two was She She ently brought first identified defendant’s brother who was brought in, into room alone. Then and she outstanding identified him. also that there no She said physical robbery characteristic noted her at the time positive making her in identification. that assisted - The defense several alibi witnesses. The defend- *4 ant took the stand and denied commission the offense. In his examination, he was if direct asked he knew who had identify try 1Lomax failed to оn his first but on defendant two other persons changed positions correctly occasions after the had he identified upon him. It was unclear whether the first was failure based selection of another he had heard crime. answered that the He committed although and, defend- say crime, committed the person he had divulge person’s name, he subse- to the ant at first refused 15-year-old Huff, a friend person as quently the Jim identified Huff, who prosecutor directed that The then of his brother. brought into the courtroom. courtroom, be the was outside Baker had been asked trial, in Lomax and Miss Earlier the the they any of four cross-examination whether persons cоurtroom, Huff was one of in the who sat rear they that them, and Lomax nor Miss Baker indicated neither had ever Huff before. seen subsequently stand, Huff to but he called the defense prose privilege against self-incrimination. The asserted his pursuant Penal cutor then to section 1324 of the Code had requested immunity, and Huff then testified that he com charged against defendant’s mitted crime defendant with was in Huff’s crime at variance brother. recollection unspecified Huff the victims. some details with that according judge 6' trial tall, between and 6T” composite drawing (perhaps more) looks as like “much judge did set forth the does defendant.” The not light age variances in of his аnd the cir commented that robbery expected Huff cumstances of the could not be to re everything member that occurred. identifications, is no other Aside there evidence from fingerprints were connect defendant with crime. His not gun scene, found at shown to have a and he any property. of the stolen judge The trial reasoned that the courtroom identifications weight pointed in were entitled to little because as out 1], quoting Slobodion, (3d page 4 Wigmore, ed.) from a witness’ act Evidence pointing courtroom, all in that out “ ” force,' intervened, has ‘of little testimonial identification of Miss Baker the sheriff's substation could given weight much of the сircumstances not be view weight given occurred, which it to Lomax’s lineup persons identification was reduced in the because wrong suspect simple calling number. another or a error out consistently any that he identified event assumed defendant. perjury. prosecutor subsequently charged Hull with 2The prosecutor whether stated he unaware evidence other trial, than at *5 496 weight
were of different size and apparently dis- wore clothing, similar that acquitted should have been because of a guilt, reasonable as to his compari- doubt that a son of the evidence at trial preliminary with that at the hear- ing prosecution shows presented all of its evi- dence, that testimony identification would not be admissi- ble at a retrial Wade, under States v. 388 United 218 U.S. L.Ed.2d 1149, 87 1926], S.Ct. and that retrial would invite a miscarriage justice. The trial ordered the information dismissed in the justice grounds:
interests of
on the
“(1)
Insufficiency of the
prove
evidence to
guilt beyond
the defendant’s
a reasonable
(2)
doubt.
Denial of
defendant’s Sixth Amendment
stage
counsel
a critical
at
of the proceeding,
thereby making
’’
impermissible.
retrial
Section 1385 of
provides:
the Penal Code
may,
“The court
upon
either
its own
application
motion or
prose-
of the
cuting attorney, and in
justice,
furtherance of
order an action
to be dismissed. The reasons for the dismissal must be set forth
in an
upon
order entered
the minutes. No dismissal shall be
made for
cause which
ground
would be
of demurrer
to the
’’3
accusatory pleading.
requirements
fully
3The
complied
of this section were
with. The trial
length
set forth
Apparently
at
his “reasons for the dismissal.’’
Legislature
requirement
sufficiently
the
interests of the
protect
believed this
would
public. Therefore,
question
we
with
are
is
ruling
by
not whether the
made
the trial court was
correct
whether
ruling
subject
opin
is
to review writ of mandate. We are of the
ion,
forth,
argued by
for reasons later set
that mandate is not available for this
purpose.
ing
pective
Attorney
It is nevertheless
Gеneral that the hold
present
lineup,
pros
of the Wade case that counsel must be
at a
retroactive, citing
Denno,
and not
Stovall
Is mandate review determination Generally made under this section? We think not. speaking, upon the writ of mandate issued petition the verified beneficially compel party performance interested to an enjoins specially resulting act which law a duty from trust, office, duty, or station plain, where there is no adequate remedy speedy, ordinary course law. *6 (Code Proc., §§1085, 1086; Service, Civ. Flora Crane Inc. v. Ross, 199, Cal.Rptr. 425, 203 ; 61 390 P.2d Cal.2d [37 193] Superior v. Court, Cornell 52 99, Cal.2d 103-104 P.2d [338 447].) Ordinarily granting lies this relief in the discre (see Service, Ross, supra, tion of the court Flora Crane Inc. v. 199, 61 Cal.2d 3 203; Witkin, (1954) pp. Cal. Procedure 2472 seq.). question et The is whether mandate should be available Legislature to secure a review when the has determined therе appeal. petitioner should be no In such a case the an has not inadequate right appeal appeal, but no all. at Legislature except The has determined that under cer tain People right limited circumstances the shall have no appeal in (E.g., People Valenti, criminal cases. v. 49 Cal.2d 199, ; People Court, 205 F.2d v. 137 Cal. [316 633] App.2d 194, 813].) appeal may 196 by P.2d An he taken the information, “1. setting From an aside indictment, order judgment complaint; or 2. From a for the defendant on indictment, a demurrer to the accusation, or information; an granting 3. trial; From an order a new 4. From arresting judgment; order 5. an From order made after affecting rights judgment, substantial 6. people; presented so then choices; when the identifier is with no alternative there is strong predisposition guilt upon to overcome doubts and to fasten suspect.” (Footnotes omitted.) (Palmer Peyton, supra, lone 199, 201.) F.2d brother, Miss Baker first identified defendant’s and then she was immediately by company police. confronted defendant The very thought police apprehended fact that she one of her assail- suggest only person presented ants would to her that other her probably was her other assailant. Therefore court was correct holding testimony that Miss Baker’s identification would be inadmis- sible on a retrial. question pretrial A difficult more is as to the identification Lomax, picked lineup. However, because he out testimony arguably suspect. lineup his identification is also The contained persons differing heights weights, probably person and and each differently. lineup identify was clothed Lomax was asked to one ‘ ‘ ’’ thought gunman. procedure highly suggestive he was the suggestive but we do not have to decide whether was so as to amount process opinion to a denial of due because we are of the that mandate is not available to review the correctness of this determination. finding reducing or modifying an order the verdict From imposed.” (Pen. degree punishment of the offense or the Code, 1238.)4 An order of dismissal after trial under section § appealable. 1385 is not made merely People’s appeal restriction on the procedural allocating appellate limitation review between appeals extraordinary
direct
writs but is a substantive
determinations
crim-
limitation
review
trial court
(See People
Valenti, supra,
inal trials.
Knowles, Cal.App. 498,
506-507
P.
205;
137]
hearing] People
opinion
;
on denial of
[Supreme Court
Cal.App.2d
681].)
In each
Morris,
many
cited,
eases, as well as
others
could be
these
appel-
found, and the
by the
was assumed or
trial court
error
ulti-
broadly
superior cоurt
stated
that the
late court
jurisdiction
long
its
as it does not exceed
mate tribunal
jurisdiction may not
of its
be “re-
error in the exercise
example,
for
by any
Valenti,
tribunal. In
other
viewed”
the information on the
judge during trial dismissed
unlawful,
and this court
ground that defendant’s arrest
subjected
that an accused who has been
arrest, search,
virtue of such
or seizure does not
unlawful
gain immunity
punishment for the offense
illegality
from
was disclosed
search.
was arrested
which
he
which
*7
order was
to
that since the
on
hold
not
The court went
accepted
by fiat an-
appealable under
rules we would not
“egregiously”
merely
appealable
because it is
that it is
nounce
erroneous.
expressly
prior
the addition of subdivisions 7
held
to
It was
under section 1385 dis
8
1238 that an order
of section
and
(People Valenti,
appealable.5
missing an information
4Subsequent
and 8
in
subdivisions 7
to the dismissal
the instant ease
They
“7. From
read:
an
were
to
1238 of the Penal Code.
added
section
upon
dismissing
prior
of the court
a
to trial made
motion
order
ease
upon
pursuant
based
an order
to
such order is
Section
whenever
suppress property
granting
or
return or
evidence
motion to
defendant’s
special hearing
provided
8. From an order or
as
in this code.
made at a
judgment
terminating
dismissing
action before the
the
or otherwise
placed
jeopardy
in
where the defendant has waived
has
or
been
subdivision,
people prosecute
appeal
If,
jeopardy.
pursuant
the
to this
binding
decision,
upon
decision,
it
them
shall be
to
review
such
’ ’
refiling
appealed.
they
prohibited from
the ease which was
and
shall
532.)
(Stats. 1967,
1537;
ch.
Stats.
ch.
course, changed
have, of
this
5The
of subdivisions 7 and 8
rule
addition
applicable
part,
of those
here because the
in
subdivisions are
neither
suppress prop
on a motion to return or
of dismissal was
based
order
erty
placed
jeopardy
and
and because defendant
has not
has been
waived, it.
People
supra,
;
Morе,
remedy, beyond the extension of review the limits which the Legislature appropriate has deemed is not warranted where the trial jurisdiction. court has not exceededits People Superior Court, supra, Cal.App.2d 194, the objection trial court sustained defendant’s to certain evidence ground illegally that was obtained and then contin permit ued the case to seek mandate. It was held that, although ruling judge may of the trial have been erroneous, jurisdiction has to decide matters incorrectly correctly him before as well that mandate would not lie review his determination. It appeal point that the could not to raise the and that *8 permitted People unless mandamus would suffer a wrong a remedy, without it was concluded that this was Legislature. argument (137 Cal.App. be to p. 196; People Court, 2d at see v. Cal.App.2d also Justice 185
500
Cal.Rptr.
Superior
256,
; Gershenhorn v.
176]
[8
Cal.Rptr. 576].)
Court,
Cal.App.2d 361,
227
366-367 [38
“jurisdiction”
regard
use of the term
with
upon petition
People in
availability mandate
crimi-
of
confusing
and unfortunate. The four last
nal cases
cited
“jurisdiction”
term
to indiсate
a court
cases used the
jurisdiction
juris-
only when it
without
acts in
of
acts
excess
i.e.,
in
where
trial
has
sense,
diction
the traditional
court
subject
jurisdiction of the
matter or of the
acted without
person.
held, however, that the issuance of mandate
Five cases have
pro
request
People
to review orders in criminal
at the
of
ceedings
limited to eases
the trial court has acted
where
jurisdiction
Thus, in
its
traditional sense.
excess of
People Superior
943],
Court,
v.
insofar as that term certiorari, its prohibition and when acts exceed the defined power whether that power instance of a court express statutory provision, declara defined constitutional developed and followed under the tion, or the courts rules (See Witkin, Procedure, also 1 Cal. stare decisis. doctrine
501 supra, However, jurisdic if this test of of p. 378.) “excess petition used would allow mandate on tion” be the People any occurring review claimed error at to time in a apply “jurisdiction” trial. To criminal definition People in permit they appeal all cases where would cannot the very Appellate to secure the review denied to them. review at People imposes request necssarily the substantial accused, on an and the extent which such burdens to burdens imposed review should to claimed errors involves a be delicate balancing competing preventing of the considerations of against correcting possible harassment of the accused as errors. in Assuming cases the may some matter be of importance may People
such that mandate to available appeal lie, review determinations where does not we are proper balancing of pro satisfied that the these considerations request People hibits review mandate at where, danger here, is a of further trial or there retrial. Such a give meaningful rule will the legislative policy effect to limit ing People review and the burdens on the defendant. v. Superior Court, supra, 165, People 202 Cal. v. Court, supra, Cal.App.2d permitted 90, 240 which issu danger ance a retrial, of mandate where there was are disapproved. Attоrney urges The General that section 1385 of the power upon Penal does not confer Code court to order a objection prosecution. dismissal of an action over the of the very This contention language flies the face of the provides may section which that the court “either of its own upon application prosecuting attorney,” motion or order an action be dismissed. Attorney General next contends that the court power jury guilty had no to dismiss after a verdict of to do so of discretion. In constituted abuse one situ ation, recognized power this court has trial court to notwithstanding jury section 1385 finding dismiss under guilt. power Thus it has bеen that the to strike or proceeding prior dismiss as to a conviction is within the power upon conferred court section 1385 and that prior may notwithstanding prior be stricken adjudication guilt. (People Burke, 47 Cal.2d People ; Benjamin, Cal.App.2d P.2d 164, 173 241] [301 ; People Cal.App.2d Harris, P.2d 142, 147-148 896] Striking J, 33 State 178]; Burke, Priors; see Bar Sidener, Cal.Rptr.
556; cf. 641].)6 authorities cited indicate that 697, 375 P.2d except Legis- is absolute where the discretion of the specifically curtailed it. lature has emphasis Secondly, that the of a trial it bears 1385 in his own motion is stated section to dismiss on judge’s right dismiss on motion of the apposition to the upon discretion conferred prosecutor, and it follows Recently, judge is same situation. either *10 Cal.Rptr. 641], 753, 390 P.2d Polk, 217, v. 61 Cal.2d prosecutor recognized discretion of the to move the wide we charges against after dismissal of one of two a defendant for had com defense had commenced and a codefendant the testimony. case, Matthews and his In that menced kidnap charged conspiracy to were with his codefendants robbery, acts purposes of and one of the two overt for the robbery In another charged of William Pambro. was the charged with murder of Pambro. were count, the defendants jail showed Matthews was prosecution, that records aware crime, jail time of the commission in at or near the that Matthews was court but evidence informed the of the murder. on or about time the other defendants with present Matthews at the denied that a eodefendant After a dismissal and the motion was prosecutor moved for time, the “Although proof 229) (p. granted. : We stated is suffi conclusive, the evidence innocence Matthews’ complicity in his as to raise a reasonable doubt cient to attorney proper for the district to was therefore murder. It ’’ dismissal. for a move in the furtherance of to dismiss The broad recognized conflicting in was also justice evidence where the Cal.Rptr. 479, 388 803, 807 People Alverson, v. Cal.2d pointed that after defendants out 711], where it was arguments commence, a closing were to stand taken the and innocent, could of them to be prosecutor who believed one (See People 1385. also properly dismiss under section move to Although 678].) Frahm, Cal.App. 253, 261 P. v. question dismissal before Polk Alverson involved the and distinguish them on this verdict, there is no reason to language 645, 647-648, disapproved 6People Sidener, supra, 58 Cal.2d Valenti, supra, necessary People implications in and 49 Cal.2d decision they Burke, People supra, insofar as 47 Cal.2d and reaffirmed effect were based on constitutional considerations in statutory basis. 5Ó3 permitted priors has been after ground, and dismissal of verdict. yve Sidener, supra, 648-649, in section 1385 vested courts law the common power per- prosequi power the common nolle law entry prosequi impan- mitted an of nolle before the elled, jury, while case was before after verdict. anything, a that, It seem if court should have would justice to dismiss in broader discretion furtherance of during verdict, the verdict than should have trial. After the prosecution; the prior has heard the whereas evidence always possi- the conclusion the trial there is bility may in the absence of dismissal more evidence .received. distinguish no reason Polk There is and Alverson ground on the dismissals there werе made on prosecution
basis acting of motions rather than the court ground involved, on its own motion. The basic further justice, ance of is the same court on whether the acts motion prosecution motion, or its own and in this connection it repetition bears dismissing upon that the cases have held that the trial court section 1385 under acts behalf of the responsibility. its attorney official A district moving under dismissal section treated effect Polk acting upon and Alverson responsibility seeking his own *11 judge dismissal. his is no why There reason a trial who must state may reasons in minutes also not be so treated.7 Finally pointed it that, Legislature should be out where the sought has judge tо curtail the discretion of the trial to dis- miss permit on his only own motion and to dismissal on motion of clarity. prosecutor, spoken it has with unmistakable Legislature provided Thus the in section 11718 of the Safety judge Health and Code the trial could not dismiss prior a in a narcotic case admitted or found to true be “ex- cept upon attorney.” of (People motion the district v. Side- ner, supra, 645, 647.) 58 Cal.2d spite language In of the of section it has been held that a trial court’s dismiss on its discretion to own motion is narrowly more circumscribed than its discretion to dismiss on prosecutor. (People Superior Court, motion supra, of the minutes, dismissing 7If the reasons are not set forth in thе the order may (People not be a considered dismissal under section 1385. Court, supra, Cal.App.2d 90, 92; Shaffer, see Cal. App.2d 39, Cal.Rptr. 844].) 45 [5 judge 714, 718.) case, In that stated Cal.App.2d preliminary- that on the basis of the trial commenced before acquit prosecuting attorney transcript and asked the he would day prosecut- next he asked the the matter. The to reconsider willing jury and submit the ing attorney if he was to waive preliminary prosecutor asked for a trial. The matter, and the surprised transcript defendant had three men showed that the “stripping” his ear shot one of them. The defendant shortly shooting police to officers admitted the its request trial, for a the court acted on occurred. After the Appeal dismissing. The reasoned motion in Court own question a fact whether the it was under evidence manslaughter firing guilty involuntary frighten attempting to car gun due caution without appellate court strippers. Thus, it would seem that the judge prior holding a trial to trial had no discretion to conflicting. the evidence was dismiss where judge’s holding that the trial discretion to dismiss on great is not as as his discretion to dismiss on his own motion judge prosecutor, the court reasoned that a trial motion ways protecting of the defendant with- had other charge depriving duly presented, trial of a of a out commenting jury, example, by on thе evidence to the acquit, granting a new But this advising to trial. judge permitted reasoning mean that a trial to do would by do direction and what the what he cannot indirection plain language Legislature to have authorized seems 1385. section purpose only trial is convinced that the to If a or a retrial harassment the defend served be permitted notwithstanding dismiss ant, he should guilt, weak, is sufficient evidence of however fact that there appeal. The trial who has heard a conviction sustain position in an as in instant case is excellent evidence would further the interest of whether retrial to determine justice. power Legislature given has trial court the "to justice, under the standard of and in view dismiss broad judges responsibility high our trial and their caliber of recognition power in of such we believe the electorate conflicting not result abuse but to the evidence will cases of power to dismiss contrary that the due exercise believe justice. proper conflicting will further evidence cases *12 ease instant case the trial dismissed the In the ground insufficiency on of of evidence to establish the stated guilt beyond a reasonable long doubt. In Ms discourse on evidence he showed that he conscientiously considering jury He entire ease. a a reached different pointed fully verdict аnd out that had not been apprised dangers of testimony identification of which prosecutor by he was aware a former and reason of his reading subject. on the The trial also stated that a comparison of preliminary transcript and the evidence prosecution received at trial indicates that the has no further Although this, course, evidence. conclusive, pointed Attorney has not further General evidence. opinion, justice our standard furtherance of recognize will best served if we discretion judge, who viewed the conflicting witnesses and heard the testimony, dismiss the basis of the reasons he has set severely than forth rather limit such disсretion to cases where is insufficient as evidence a matter of law. A determination whether to dismiss in the interests justice a balancing verdict involves many factors, a weighing including the guilt the evidence indicative of involved, innocence, the nature of the crime the fact that the prison defendant has or has trial been awaiting incarcerated in length possible such incarceration, and the harass retrial, imposed upon ment and the defendant burdens any, likelihood, if and the that additional evidence will be presented upon a retrial. When the balance falls clearly in defendant, favor of trial court not only may powers granted but shоuld exercise to him Legis grant justice. a dismissal in lature and the interests of Assuming may we review the merits in case, the instant we does are satisfied the record not show an abuse of judge reasons forth discretion but set his furnish a order dismissal sufficient basis for the dismissal. discharged, writ of mandamus is The alternative and the peremptory
petition writ is denied. J., Sullivan, Tobriner, J., J., concurred. Traynor, C. judgment. MOSK, in the J. I concur point purpose However, I must out that no constructive by including opinion which in the dictum results in served Superior (1927) disapproving Court Cal. 165 Cal, P, Court 943], (1966) *13 Cal.Rptr. 365], proper those App.2d 90 Both of cases are People and examples appropriate use mandatе pro disapproved. court In the former case the should not be judgment jury; the verdict of the
nounced an erroneous judgment granted a motion for a latter the trial court proceeding unknown to the notwithstanding verdict, a did order a new trial. case the court law. neither criminal purpose penal of our must not overlook fundamental We give unconsciona defendant or the statutes: ’ ‘‘ (Pen. justice’ Code, 4). advantage promote § ble Burke, J., concurred. mandate I the writ of McCOMB, J. dissent. would issue I expressed Presiding by Mr. the views in accordance with opinion prepared by him for Court Draper in Justice (Cal.App.) Court Appeal Cal.
Rptr. 572. application rehearing denied Novem- Petitioner’s opinion petition J., McComb, ber 1968. granted. should 4, 1968.] 29184. A. No. In Bank. Nov.
[L. CORPORATION, Plaintiff and McDONNELL DOUGLAS BOARD, Appellant, v. TAX Defendant FRANCHISE Respondent.