Opinion
NOT TO BE PUBLISHED
Superior Court County of Ventura No. 2006031437, Bruce A. Clark, Judge
Gregory D. Totten, District Attorney, Lisa O. Lyytikainen, Senior Deputy District Attorney, for Appellant.
Law Offices of James T. Studer and James T. Studer for Respondent.
PERREN, JUDGE
The People appeal from the trial court's order granting Frank Guerrero's motion to dismiss the complaint charging him with sale or transportation of marijuana (Health & Saf. Code, § 11360, subd. (a)). In their opening brief, the People contend only that the court erred in dismissing the complaint pursuant to Kellett v. Superior Court (1966) 63 Cal.2d 822 (Kellett). Guerrero's motion to dismiss was not limited to Kellett, however, and the minute order reflects that the court dismissed the complaint on its own motion in the interests of justice pursuant to Penal Code section 1385. We conclude that the People effectively waived or abandoned their right to challenge the dismissal by failing to address the alternative bases for the court's ruling in their opening brief. Accordingly, we affirm.
All further undesignated statutory references are to the Health and Safety Code.
FACTS AND PROCEDURAL HISTORY
On February 3, 2006, a Ventura County Superior Court Magistrate issued a warrant to search Guerrero's residence in Moorpark. Ventura County Deputy Sheriff Ron L. Helus filed an affidavit in support of the warrant stating, among other things, that a confidential reliable informant (CRI) had recently completed a controlled buy of marijuana from Guerrero at his residence. The warrant was executed on February 8, during which the police seized 900 grams of marijuana, two marijuana plants, and other items indicative of marijuana sales.
The Ventura County District Attorney subsequently filed a complaint charging Guerrero with one count of cultivating marijuana, in violation of section 11358, and one count of possessing marijuana for sale, in violation of section 11359. On April 28, 2006, Guerrero pled guilty to the cultivation charge. Pursuant to his plea, the possession count was dismissed. On June 29, the trial court suspended imposition of sentence and placed him on three years' formal probation, with a condition that he serve 180 days in county jail.
On August 23, 2006, the district attorney filed a complaint charging Guerrero with sale or transportation of marijuana, in violation of section 11360, subdivision (a). The charge was based on the CRI's controlled buy at Guerrero's residence on or about February 1, 2006.
Guerrero subsequently filed a demurrer and/or motion to dismiss the complaint. Guerrero contended he was entitled to the requested relief "on the authority of Kellet vs. Superior Court(1966) 63C2d 822, 828 and its progeny and Penal Code Section 654 and Penal Code Section 954 and the Double Jeopardy prohibitions of the United States Constitution and the Due Process prohibit[ions] against delay in prosecution and prosecutorial misconduct." Guerrero argued, among other things, that "[t]he February 15, 2006 complaint for the February 8, 2006 marijuana drug charge violations was based on the same evidence of a sale of marijuana on February 1, 2006, the same course of conduct of marijuana sales, was mentioned in the arrest report of February 8, 2006 that was presumably considered by the District Attorney's Office, the defense, probation, and the Court in determining the disposition of the prior case as a plea of guilty to felony cultivation of marijuana and everything else being dismissed in light of the plea and a sentence of 180 days in the County jail." He also asserted that "[t]he District Attorney's filing Deputy Ryan Wright claims to have intentionally held back on filing the second case until after the conclusion of the first case because 'I did not want to burn my snitch.' The truth is as part of a negotiated disposition Defendant did not traverse the warrant and did not make a motion to compel the District Attorney's Office to disclose the identity of the informant."
The People opposed the demurrer and motion to dismiss on the ground that the complaint was not governed by Kellett because its rule against multiple prosecutions for offenses in which the same act or course of conduct plays a significant part does not apply to "offenses committed at different times and different places." (See People v. Cuevas (1996) 51 Cal.App.4th 620.)
At the hearing on the demurrer and motion to dismiss, Guerrero's attorney stated, "I've never had a prosecutor hold back on something and deliberately not tell me their intention to pursue. And my expectation in leaving the courtroom was, we pled a deal, made a compromise. I forego making certain arguments and motions, and we walked away with the belief and expectation that, you know, everything was packaged. Everything was in the four corners of the arrest report that they knew about and that we knew about that could have been prosecuted was all merged in that felony disposition statement." Counsel added: "You know, but putting aside the legality and the appellate and due process and, you know, it's just not right. I mean, it just sends chills down my spine to think I could make a deal with the DA and then having, like, this lurking in the background. I have talked to other members of the bar and they were shocked by this."
After the People submitted on the papers, the court stated, "Motion granted. The defendant is discharged." No statement of reasons for the court's ruling was requested. The minute order states, "The case is dismissed pursuant to 1385 PC; re: Interest of justice on the motion of Court."
DISCUSSION
The People's opening brief is limited to the propriety of the trial court's decision to grant Guerrero's motion to dismiss the complaint pursuant to Kellett. The reporter's transcript does not demonstrate, however, that the court granted the motion on that ground, as opposed to the other grounds asserted in the motion. Moreover, the minute order of the proceedings plainly indicates that the court also exercised its authority to dismiss the complaint on its own motion in the interests of justice under Penal Code section 1385. Accordingly, we requested supplemental briefing on whether the People had effectively waived or abandoned their right to challenge the court's ruling.
In response, the People contend that the minute order creates a "conflict" in the record and that the reporter's transcript "is the more reliable record based on the circumstances under which the proceedings were had." The People also moved for an order remanding the matter to the trial court for correction pursuant to rule 8.155(c) of the California Rules of Court.
We denied the motion to correct the record because it was untimely. Besides, there is no conflict between the reporter's transcript and the minute order. While the reporter's transcript indicates that the court granted Guerrero's motion to dismiss the complaint, the minute order unequivocally reflects that the court also dismissed the complaint on its own motion in the interests of justice under Penal Code section 1385. The People's opening brief makes no mention of this alternative basis for the court's ruling. "The very settled rule of appellate review is a trial court's order/judgment is presumed to be correct, error is never presumed, and the appealing party must affirmatively demonstrate error on the face of the record. [Citations.]" (People v. Davis (1996) 50 Cal.App.4th 168, 172; see also People v. Nitschmann (1995) 35 Cal.App.4th 677, 684 ["Error is never presumed and appellant has the burden to show error"].) It is also well settled that a party waives or abandons the right to challenge a ruling by failing to address it in the opening brief. (Wurzl v. Holloway (1996) 46 Cal.App.4th 1740, 1754 & fn. 1; 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 616, pp. 647-648.)
Moreover, Guerrero's motion to dismiss the complaint was not limited to Kellett. He also argued that dismissal was compelled by "the Double Jeopardy prohibitions of the United States Constitution and the Due Process prohibit[ions] against delay in prosecution and prosecutorial misconduct." The court merely stated "motion granted" at the conclusion of the hearing on the motion, and the People never asked the court to state the basis for its ruling. By failing to challenge all of the grounds for dismissal raised in Guerrero's motion, as well as the court's alternative decision to dismiss the complaint on its own motion, the People effectively waived or abandoned their right to challenge the court's ruling on appeal.
The order of dismissal is affirmed.
We concur: YEGAN, Acting P.J., COFFEE, J.