Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, Super.Ct. No. INF049689. James S. Hawkins and Richard A. Erwood, Judges.
Judge Hawkins granted the prosecution’s request to dismiss the case and refile the charges; Judge Erwood denied defendant’s request for dismissal.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, James D. Dutton, Supervising Deputy Attorney General, and Melissa Mandel, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
Following a jury trial, defendant was found guilty of first degree burglary. (Pen. Code, § 459.) The trial court thereafter found true that defendant had suffered a prior strike conviction (§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)); a prior serious felony conviction (§ 667, subd. (a)); and a prior prison term (§ 667.5, subd. (b)). As a result, defendant was sentenced to a total term of 13 years in state prison. Defendant’s sole contention on appeal is that the trial court erred when it denied his motion to dismiss the charges based on the prosecutor’s willful misconduct in dismissing the case and refiling it to avoid an adverse evidentiary ruling. Without determining whether the court erred, we find any error to be harmless.
All future statutory references are to the Penal Code unless otherwise stated.
I
FACTUAL AND PROCEDURAL BACKGROUND
On November 6, 2003, Ben Benoit was the owner of a home located in La Quinta. He was in the process of moving out of his home but continued to spend some nights there. He had planned to spend the following Thursday, Friday, and Saturday nights at the home, having friends over to toast his last day at the house. The utilities to the home were still on, and Benoit’s clothing and most of his furniture were still in the home. He had moved out about one-quarter of his belongings, but three-quarters were still there.
Benoit returned home on November 6, 2003, about 11:30 a.m. He saw a car in his driveway that he had never see before. It was a white Acura, parked five or six feet away from the garage. Defendant was closing the trunk of the car. Benoit maneuvered his car behind the Acura, and as he did so he saw the front door of his house slam shut, as if someone else was inside. When Benoit had left his house earlier, he had closed and locked the doors.
As Benoit pulled in behind the Acura, defendant calmly got into the car and closed the car door. Defendant looked at Benoit in the mirror and motioned for Benoit to get out of his way. Benoit motioned back, indicating he was not going to move. Benoit had never met defendant before.
Defendant then put his car into reverse and lightly tapped Benoit’s car bumper with his car. Benoit put his car in park and yelled at defendant to stop. Defendant pulled up four to five feet in the driveway, then reversed again, hitting Benoit’s car with enough speed to bend his license plate. Benoit took out a camera and began taking photos. Defendant gave up trying to push Benoit out of the way and started making a U-turn in the driveway, but Benoit was blocking the only exit. Benoit continued to take pictures as defendant pressed his car against a jeep that was also parked in the driveway. Eventually, defendant drove through Benoit’s front fence toward Benoit, fully accelerating with his tires screeching and leaving tire marks on the sidewalk as he drove away. Part of the fence hit Benoit’s car and caused the door to slam shut.
Benoit called the police. He provided an exact license plate number for the Acura.
The police arrived and searched the home. No one else was inside. When Benoit went in, he saw items had been moved. Some of his property had been packed into boxes and placed by the front door. In addition, items from his garage were missing. The house had been ransacked. Boxes which had been stacked neatly were turned inside out and were on the floor. Drawers were open and checkbooks had been pulled out. Items were stolen, including tools, a record player, the base box for speakers, and remote controls. Thirty to 40 items were stolen. A deadbolt which had been attached to the garage was gone, and the clip that held it was damaged and bent. There were pry marks on the garage. Gloves were found in the driveway at the very spot defendant had been standing. Benoit later found a pair of white latex gloves by his back door behind the kitchen table.
The white Acura was owned by Margie Torres, the mother of defendant’s girlfriend, Lisa Valenzuela. Valenzuela paid for and had possession of the car. Valenzuela and defendant had been dating for about three years and had a child together.
On November 10, 2003, Riverside Sheriff’s Deputy Charles Donivan was on patrol when he saw defendant sitting on a wall in front of a mobile home park. When defendant saw the deputy, he pushed himself backwards and fell over the wall, then jumped up and ran through the trailer park. Deputy Donivan lost sight of defendant but continued to look for him because his behavior seemed suspicious. Deputy Donivan drove through the mobile home park and saw defendant crouching and walking between trailers.
Defendant eventually walked back to the front of the mobile home park and sat down. Deputy Donivan exited his sheriff’s vehicle and approached defendant. Defendant seemed surprised to see the deputy and gave a false name. The deputy noted the name Marroquin on a vinyl compact disc (CD) case defendant had dropped. Defendant was sweating even though it was a cool day. His hands were shaking and his left eye was twitching. Defendant said he was at the park to visit a friend, but he could not remember the friend’s name. While speaking with the deputy, defendant stood up and turned from side to side as if he was looking for someone. When the deputy asked what he was doing, defendant took off running.
Deputy Donivan pursued defendant but lost sight of him around a blind corner. The deputy radioed dispatch that he was in pursuit and gave the name Marroquin. One of the responding officers said the person may have been “Randy Marroquin, a wanted burglary suspect.”
Other officers arrived and set a perimeter around the park. A citizen approached one of the officers on the scene and said he had seen a person matching defendant’s description run over to the trailer in space No. 63. A canine unit and other officers went to the trailer and knocked on the door, and the canine officer commanded anyone inside to come out. A voice responded, “Hold on, I am coming out,” and officers noticed a piece of sheet metal resting up by the trailer, covering a hole. One of the deputies pulled it away, and defendant came out from underneath the trailer.
II
DISCUSSION
Defendant’s case was originally filed as case No. INF045775. On February 8, 2005, the date defendant’s trial was scheduled to begin, the prosecutor turned over a CD containing recordings of jail telephone conversations between defendant and his girlfriend. The recordings contained damaging admissions, and the prosecutor intended to use the CD at trial. Defense counsel moved to exclude this evidence based on the prosecutor’s untimely disclosure. The trial court found the prosecution violated the discovery statutes and excluded the CD from evidence.
On February 10, 2005, based on the trial court’s ruling, the prosecutor moved to dismiss the case in furtherance of justice pursuant to section 1385 and informed the court of her intent to immediately refile the charges pursuant to section 1387. Defense counsel objected to the dismissal, arguing it was an attempt by the prosecutor to avoid or circumvent an adverse discovery ruling by the court and to usurp the court’s discretion. The trial court overruled defense counsel’s objection, granted the motion to dismiss, and permitted the prosecutor to refile the case.
On August 22, 2005, defendant filed a motion to dismiss the information, asserting, among other claims, that the original case was not properly dismissed pursuant to section 1387 and that his due process rights were violated by the prosecutor’s vindictiveness and misuse of the dismissal/refiling procedures in order to circumvent an adverse evidentiary ruling. The People subsequently filed their opposition.
A hearing on defendant’s motion was held on October 21, 2005. At the hearing, the trial court indicated it was troubled by the prosecutor’s conduct: “[W]hat troubles me is what happens is you get assigned out for trial, you get a ruling that you don’t like, and then you dismiss the case and then refile it. And that’s—and that’s what it boils down to. . . . [¶] Now, the question is: Can you do that? It appears to me that you can do that, but shouldn’t there be some sanction for that? Just because you don’t like a judge’s ruling, that you then dismiss the case and then refile it, and we have to go through this thing again after you have been assigned out to your courtroom, to a courtroom for trial?” In response, the prosecutor argued the case called for a dismissal “based on the unusual circumstances of what came down in the pretrial motions.”
The court, agreeing with the defense that what the prosecutor did was unfair, went on to state: “Well, it does—I mean, just a gut reaction, it’s [sic] smacks as being unfair when you get a ruling you don’t like, that you can then dismiss and then refile the charges, redo the whole thing all over again, just because you didn’t like the pretrial ruling that you had, and we had a jury waiting to be brought in to start the trial. You are saying that a dismissal is proper if it’s in the furtherance of justice. Well, I guess, then, we are having a difference of opinion as to what the concept of justice is, because it would seem to me that there should be some sanction imposed upon a prosecutor who at the last minute doesn’t like a judge’s ruling and dismisses a case and then refiles it. I really don’t think that’s a proper use of [section] 1385. [¶] You had witnesses available to testify in this case. You announced ready. You were assigned out. . . . [W]hen the pretrial motions didn’t go your way, then you decided that you would dismiss that to prevent the judge from using that ruling, to prevent you from getting a sanction for your discovery violation. You violated the rule of discovery. And, you know, shouldn’t there be a penalty for that?”
Following further discussions on the issue, the court, notwithstanding being extremely troubled by the prosecutor’s actions and noting that if the prosecutor did not like the discovery violation ruling she should have filed an appellate writ, found it did not have the authority to dismiss the case and denied the motion. The court explained that it felt “bound by the law,” even though it found the prosecutor’s actions to be unfair and a waste of court resources.
Defendant contends the first trial court erred in permitting the prosecutor to dismiss the original action in the interest of justice, and that the court erred in failing to set forth a statement of reasons for the dismissal in its minute order. He further claims that the second trial court erred in denying his motion to dismiss the charges on the ground it did not believe it had the authority to dismiss the action.
Without deciding whether the trial court erred, we find any error to be harmless in light of the overwhelming evidence establishing defendant’s guilt. Viewing the error as one of an evidentiary violation, the proper standard of review is that announced in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). (People v. Mullens (2004) 119 Cal.App.4th 648, 659.) Likewise, presuming the error to be one of a statutory violation, a Brady violation, or prosecutorial misconduct, the proper standard of review is again the Watson standard. (See, e.g., Strickler v. Greene (1999) 527 U.S. 263, 281-282 [119 S.Ct. 1936, 144 L.Ed.2d 286]; Kyles v. Whitley (1995) 514 U.S. 419, 434 [115 S.Ct. 1555, 131 L.Ed.2d 490] [Brady violation viewed under harmless error standard]; People v. Gionis (1995) 9 Cal.4th 1196, 1220 [under California law a prosecutor’s misconduct will only amount to prejudicial error if, based on the evidence of guilt, a more favorable verdict would have been reached in the absence of the prosecutor’s error]; In re Jesusa V. (2004) 32 Cal.4th 588, 624-625 [violations of statutory rights are reviewed for harmless error pursuant to Watson, at p. 836]; In re Kobe A. (2007) 146 Cal.App.4th 1113, 1122 [same].) Under Watson, an error is not harmless “only when the court, ‘after an examination of the entire cause, including the evidence,’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (Watson, at p. 836.)
We note, however, in our review of the record and in the context of the court’s entire comments, that the second trial court did not deny defendant’s motion to dismiss because it believed it did not have any authority to do so but felt that it would have been an abuse of its discretion under the law had it granted defendant’s motion to dismiss. The court explained, “In reading [defendant’s] points and authorities and reading the prosecution’s, I don’t feel a dismissal is justified for this violation.” (Italics added.)
Brady v. Maryland (1963) 373 U.S. 83 [83 S.Ct. 1194, 10 L.Ed.2d 215] (Brady).
Here, as set out in detail in part I, ante, there was overwhelming evidence of defendant’s guilt, regardless of the jailhouse CD. It is simply inconceivable that any juror would not have found defendant committed the crime of burglary at the victim’s home on the evidence submitted at trial even without the jailhouse CD in which defendant makes an admission of being at the victim’s home. As such, even if we were to apply the more stringent beyond-a-reasonable-doubt standard of review under Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705], we would still find the error to be harmless beyond a reasonable doubt.
III
DISPOSITION
The judgment is affirmed.
We concur:
RAMIREZ, P.J., McKINSTER, J.