Opinion
G057697
03-25-2020
THE PEOPLE, Plaintiff and Appellant, v. JESSE ALBERT MENCHACA, JR., Defendant and Respondent.
Todd Spitzer, District Attorney, and Daniel Varon, Deputy District Attorney for Plaintiff and Appellant. Helen Irza, under appointment by the Court of Appeal, for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 18CF1011) OPINION Appeal from a judgment of the Superior Court of Orange County, Kathleen E. Roberts, Judge. Reversed. Todd Spitzer, District Attorney, and Daniel Varon, Deputy District Attorney for Plaintiff and Appellant. Helen Irza, under appointment by the Court of Appeal, for Defendant and Respondent.
The People of the State of California appeal from a judgment of dismissal after the court denied their request for a continuance and they were unable to proceed with the preliminary hearing. We conclude the court erred and reverse the judgment.
FACTS AND PROCEDURAL HISTORY
The prosecution filed a felony complaint against defendant Jesse Albert Menchaca, Jr., and two codefendants. Defendant waived his right to a preliminary hearing within 60 days, and later agreed to a preliminary hearing on March 14, 2019 "or within a reasonable period of time of that date."
On March 14, the court conferred with the prosecutor and defense counsel off the record in chambers. A nunc pro tunc minute order entered more than a month later described that in-chambers conference as follows:
"Both counsels requesting to trail the case for a plea. The Court told them she would take the plea today and was not going to keep continuing the case. She said let's do the plea now. [The prosecutor] then said 'that's not going to happen.' The Court asked why we could not take the plea at this time and [the prosecutor] stated that defense counsel . . . had to be in another court at 2:00 p.m. The Court pointed out that it was only 10:45 am and could immediately take the plea. [The prosecutor] became rude and said again 'that's not going to happen.' The Court then said it will proceed to prelim today unless they had good cause or would take the plea. [The prosecutor] stated he will file a [Penal Code section] 1050. When I asked on what grounds, he said he could jioin [sic] it with another defendant. The Court said it was not good cause after 11 months, and on day of preliminary hearing to say they wanted a continuance. [The prosecutor] then raising his voice and stated, 'I am not going to do 2 prleims [sic] on these cases.' The Court invited him to brief the . . . issue, he declined. The court then told him it had to go to prelim today, the [sic] then said he would announce unable to proceed. The Court then told him if that was the case, the matter would be dismissed for failure to prosecute."
On the record in open court, defense counsel announced ready for preliminary hearing, but noted he was "agreeable" to the prosecution's request for a continuance. The prosecutor said he was unable to proceed and asked "to trail the matter on the 28th of March to join the co-defendants." The court replied, "I do not find that good cause, especially since it's almost a year old. [¶] Are you unable to proceed today?" The prosecutor responded he was not able to proceed and the court dismissed the case without stating any reasons on the record. The March 14 minute order states: "Case dismissed - Other reason."
DISCUSSION
The People argue the court did not have authority to dismiss the case under Penal Code sections 859b or 1050 (all statutory references are to this code).
We agree section 859b did not give the court the authority to dismiss the case, because defendant had previously waived his right to have a preliminary hearing within 60 days of his arraignment. (See § 859b, subd. (b).)
We also agree section 1050 did not give the court the authority to dismiss the case, because it specifically states "[t]his section is directory only and does not mandate dismissal of an action by its terms." (§ 1050, subd. (l).) Further, if the moving party fails to comply with the requirements of section 1050, the court can order sanctions under section 1050.5, but "shall not dismiss the case." (§ 1050.5, subd. (b).)
Defendant concedes section 1050 "standing alone" did not give the court the authority to dismiss, but argues the court was authorized to dismiss the case pursuant to section 1385 in the furtherance of justice. We are not persuaded.
Section 1385 does gives the trial court the authority to dismiss a case on its own motion in "furtherance of justice," but only if the reasons for the dismissal are "stated orally on the record." (§ 1385, subd. (a).) Here the court failed to state the reasons for the dismissal orally on the record. This failure was "fatal and is alone sufficient to invalidate the dismissal." (People v. Orin (1975) 13 Cal.3d 937, 945.)
Plus, neither the court minutes nor the reporter's transcript indicates the court actually dismissed the case under section 1385, and defendant has cited no authority that allows us to assume that is what the court did. He acknowledges People v. Henderson (2004) 115 Cal.App.4th 922, held a court has no authority to dismiss an action under section 1385 "when the People have failed to show good cause for a continuance under section 1050, so long as the requested date for the preliminary hearing is within the statutory time limit established in section 859b." (Id. at p. 939.) He then argues Henderson does not preclude dismissal in this case because the People failed to request a preliminary hearing within the statutory time period.
This argument misses the point. While it is true the court was not precluded from dismissing the case pursuant to section 1385 in furtherance of justice, on the record before us we cannot assume that is what the court actually did or why.
Because we agree the record does not support the conclusion the court dismissed the case pursuant to section 1385, we need not address the People's further argument such a dismissal would have been an abuse of discretion. --------
DISPOSITION
The judgment is reversed.
THOMPSON, J. WE CONCUR: O'LEARY, P.J. ARONSON, J.