Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. BLF005084. Ronald L. Johnson, Judge. (Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Rod Pacheco, District Attorney, and Alan D. Tate, Deputy District Attorney, for Plaintiff and Appellant.
Linda Acaldo, under appointment by the Court of Appeal, for Defendant and Respondent.
OPINION
McKinster, J.
INTRODUCTION
A first amended information charged defendant and appellant Tracy Lavelle Collier with two counts of felony indecent exposure under Penal Code section 314, subdivision 1. The information also alleged that defendant had previously been convicted of attempted murder under sections 664 and 187, within the meaning of sections 667, subdivisions (c) and (e)(1) and 1170.12, subdivision (c)(1). Following a three-day trial, the jury was unable to reach a verdict on either count; a mistrial was declared. The jury was split nine to two for an acquittal.
All statutory references are to the Penal Code unless otherwise specified.
Nine plus two does not add up to 12 jurors. However, the nine-to-two numerical split is what the court recited at the hearing to dismiss.
Prior to the start of a second trial, defendant filed an invitation to dismiss the information under section 1385. The People filed an opposition to the motion. After hearing argument, the trial court granted defendant’s invitation to dismiss.
The People appeal. For the reasons set forth below, we shall affirm the trial court’s dismissal of the information under section 1385.
STATEMENT OF FACTS
Defendant was serving a state prison sentence in the California Department of Corrections and Rehabilitation. On August 24, 2008, female Correctional Officer Terry saw defendant sitting in his bunk, holding a magazine and stroking his penis (count 2). On November 18, 2008, a different female officer, Officer Zamora, saw defendant stroking his penis while his pants were pulled down, while he was turning his cell lights on and off (count 1).
ANALYSIS
The People contend that the trial court erred in dismissing the criminal charges against defendant.
Section 1385 provides that a judge, “either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed.” Although a defendant is not authorized to make a motion to dismiss, the defendant may informally request that a court dismiss the charges against him. (People v. Superior Court (Flores) (1989) 214 Cal.App.3d 127, 136-137.)
We apply an abuse of discretion standard to a review of the trial court’s dismissal of a case under section 1385. (People v. Ortega (2000) 84 Cal.App.4th 659, 666.) An abuse of discretion is shown when the trial court’s decision was based on improper reasons or on an error of law or when the trial court’s factual findings are unsupported by evidence in the record. (People v. Cluff (2001) 87 Cal.App.4th 991, 998; People v. Draut (1999) 73 Cal.App.4th 577, 581.)
Here, at the hearing on defendant’s invitation to dismiss, the trial court reviewed both defendant’s invitation to dismiss and the People’s opposition to the motion. In the invitation, defendant reminded the trial court that defendant is a sentenced prisoner in the California Department of Corrections and Rehabilitation—defendant “was given a life sentence with the possibility of parole.” Defendant also summarized the evidence provided at the prior jury trial which ended in a mistrial. During his trial, two correctional officers testified as to what they observed, as provided in the statement of facts, supra. In his defense, defendant provided the following:
As to count 1, defendant’s cellmate on November 18, 2008, Oscar Ward, stated that (1) defendant had been flashing the lights on and off to communicate with other prisoners; (2) a towel had been hung in the doorway to block the officers’ view of the cell; (3) Ward did not see defendant with his penis in his hands; and (4) Ward would not have tolerated that behavior, as it would have put both defendant and Ward in danger from other inmates.
As to count 2, in August of 2008, defendant was holding a magazine while his penis was erect. There was nothing in the record to indicate that defendant looked at the officer during this occurrence. In fact, immediately upon the officer’s alert to defendant that she could see what he was doing, defendant ceased his activities and apologized to the officer.
At the hearing on the invitation to dismiss, the trial court, after evaluating the evidence presented at the trial wherein nine members of the jury believed defendant was not guilty of both counts of indecent exposure, thoughtfully stated:
“All right. Let me give you my tentative feelings on the case. I remember this case rather well....
“The Court -- and as I recall the jury verdict was nine to two for not guilty. And my recollection of the evidence presented and the problems that I would have had had this case been tried to me were proof of intent.
“And I understand from the People’s papers that it’s their proposal to present two additional witnesses that were not presented at the original trial that would go, at least partially, to the issue of would the act -- one, did it occur, and two, if it occurred, was it an intentional act on the part of [defendant]?
“I think that is a hurdle over which the People will not be able to successfully leap. I think the jury had a problem with that. As I say, if I were the trier of fact, I would have had a problem with that.
“I think this case can be tried multiple times, and I think the results that we’re going to receive will be the same. I don’t think there will ever be 12 votes for conviction of the facts as they were presented. And they were fully presented and strenuously argued by both sides in the trial.”
Indecent exposure under section 314 requires the People to prove that the defendant “willfully and lewdly” exposed himself in public or to another person. (§ 314.) The People must also show the defendant “intended by his conduct to direct public attention to his genitals for purposes of sexual arousal, gratification, or affront.” (In re Smith (1972) 7 Cal.3d 362, 366, fn. omitted.)
Here, there was no issue that defendant actually masturbated. The sole issue was whether, while masturbating, defendant intended that the two correctional officers see what he was doing. Based on the evidence presented at a three-day trial, the jury was unable to reach a verdict on either count and a mistrial was declared. Nine jurors were in favor of an acquittal. At the hearing on dismissal of the information, the trial court carefully reviewed the invitation and opposition filed by the parties and considered what had transpired at the trial. Thereafter, the trial court made its ruling to dismiss the information. We discern no abuse of discretion by the trial court in finding that in the interest of justice, “the facts do not support any reasonable probability of success on multiple trials.”
Notwithstanding the deferential abuse of discretion standard of review, the People argue that the trial court overlooked “substantial new evidence that was available.” However, as stated above, the trial court was fully aware of this “new” evidence and explained why this evidence would not be helpful in the People’s case. To establish abuse, an appellant must show that, under the circumstances, the trial court’s decision was arbitrary, capricious, or “‘exceed[ed] the bounds of reason....’” (People v. Warner (1978) 20 Cal.3d 678, 683; see also People v. Cazares (1987) 190 Cal.App.3d 833, 837.) Here, we cannot say that the order of dismissal was arbitrary, capricious or exceeded the bounds of reason.
In further support of its argument, the People contend that “appellate courts have shown considerable opposition to the granting of dismissals under section 1385 in instances where the People are thereby prevented from prosecuting defendants for offenses of which there is probable cause to believe they are guilty as charged.” (People v. Orin (1975) 13 Cal.3d 937, 946-947 (Orin).) We agree with this legal reasoning. In this case, however, the People had an opportunity to prosecute defendant in a contested three-day trial. Orin is inapplicable to this case.
In Orin, supra, 13 Cal.3d 937, the defendant was charged by information with three counts, all arising out of the same incident: robbery (count 1), burglary (count 2), and assault with a deadly weapon (count 3). (Id. at p. 940.) With respect to counts 1 and 2, the information alleged that at the time of the commission of the offenses, the defendant was armed with a deadly weapon, used a firearm, and intentionally inflicted great bodily injury upon the victim. (Ibid.) When the case was called to trial, the prosecutor informed the court that the People were ready to proceed to trial and that any plea as to count 3 was unacceptable. (Ibid.) Thereafter, defense counsel informed the court that the defendant was willing to withdraw his plea of not guilty to the charge of assault with a deadly weapon (count 3), and to enter a plea of guilty to that count. (Ibid.) “The court replied that it was ‘willing to accept that plea at this time as to Count III and put the matter of the disposition of the remaining counts over to the time of probation and sentence proceedings.... The Court, on it’s [sic] own motion, will dismiss the remaining counts against you.’” (Id. at pp. 940-941.) The prosecutor objected to the proposed arrangement. (Id. at p. 941.)
At the probation and sentencing hearing, the prosecutor moved to withdraw the guilty plea and to proceed to trial on all three counts. The court denied the motion. (Orin, supra, 13 Cal.3d at p. 941.) Thereafter, in a printed form titled “Judgment, ” a box stating the following was checked: “‘Remaining counts dismissed in interests of justice.’” (Ibid.)
On appeal, the People contended that the trial court’s dismissal of counts 1 and 2 under section 1385 was an abuse of discretion. (Orin, supra, 13 Cal.3d at p. 942.) The California Supreme Court noted “that the dismissal of counts I and II [was] manifestly invalid under section 1385 because of the court’s failure” to state the reasons of the dismissal in the order of dismissal. (Id. at p. 943.) In addition, the court reiterated that appellate courts are opposed to the granting of dismissals under section 1385 where the People are prevented from prosecuting cases for which there is probable cause as to the defendant’s guilt. (Id. at pp. 946-947.) After reviewing the facts of the case, the court concluded: “In sum, the net effect of the dismissal was to preclude the prosecution and possible conviction of defendant for two offenses simply because he was willing to plead guilty to a third, all three offenses having been properly charged.” (Orin, at p. 948.)
The facts in this case are readily distinguishable from the facts in Orin, supra, 13 Cal.3d 937. In this case, unlike Orin, the trial court stated its reasons for dismissing the information. Here, in an order nunc pro tunc, the trial court stated the reasons “for granting the motion under [section] 1385.” The court stated that, in the interest of justice, the facts did not support any reasonable probability of success on multiple trials. Moreover, unlike Orin wherein the trial court simply dismissed counts 1 and 2 of the information in exchange for a guilty plea as to count 3, prior to trial; in this case, the case had already gone through a three-day jury trial. After the case had been tried before members of the jury, a mistrial was declared because most of the jurors were in favor of acquittal. After the mistrial and after carefully considering the arguments regarding dismissal, the trial court granted defendant’s invitation to dismiss the information.
Furthermore, the People argue that “a dismissal designed to ease court congestion is also an abuse of discretion. (People v. Mack (1975) 52 Cal.App.3d 680, 684.)” The People, however, fail to indicate where in the record there is any indication that the court dismissed this matter for judicial convenience or court congestion. After reviewing the record, we have found nothing to support the People’s argument. Instead, the trial court, in dismissing the information, stated it was based on the People’s lack of evidence in this case: “No reasonable jury could convict the defendant based on the evidence presented as to his intent.”
For the reasons set forth above, we find that the trial court did not abuse its discretion in dismissing the information against defendant.
DISPOSITION
The judgment is affirmed.
We concur: Hollenhorst Acting P.J., King J.