Opinion
G057652
03-25-2020
THE PEOPLE, Plaintiff and Appellant, v. ALEJANDRO ALCANTAR SALINAS, Defendant and Respondent.
Todd Spitzer, District Attorney, and Daniel Varon, Deputy District Attorney for Plaintiff and Appellant. Richard Schwartzberg, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 18CF2238) OPINION Appeal from a judgment of the Superior Court of Orange County, Kathleen E. Roberts, Judge. Affirmed. Todd Spitzer, District Attorney, and Daniel Varon, Deputy District Attorney for Plaintiff and Appellant. Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Respondent.
Following the denial of their motion to continue defendant Alejandro Alcantar Salinas's preliminary hearing, the prosecution announced it was unable to proceed. The trial court then dismissed the case for "lack of prosecution." The minutes reflect the dismissal was in furtherance of justice under Penal Code section 1385.
All statutory references are to the Penal Code unless otherwise stated.
The People contend (1) the court failed to meet the statutory requirements of section 1385 by stating its reason for the dismissal on the record, and (2) the dismissal under section 1385 was an abuse of discretion. We disagree and affirm the judgment.
FACTS AND PROCEDURAL HISTORY
The People filed a felony complaint against defendant alleging four counts of lewd act upon a child. Defendant was arraigned, and at a later court date waived his right to have a preliminary hearing within 60 days of his arraignment. After numerous hearings, defendant's preliminary hearing was set on March 1, 2019 "or within a reasonable period of time from that date."
On March 1, 2019, the defense answered ready for preliminary hearing. The prosecutor answered not ready and filed a motion to continue the case pursuant to section 1050 (1050 motion). In the declaration attached to the 1050 motion, the prosecutor wrote "[on the previous court date] I made a written request . . . to subpoena all witnesses for the preliminary hearing[.]" Per the declaration, on the previous day defense counsel had informed the prosecutor he would be ready for preliminary hearing. The prosecutor informed defense counsel he had multiple cases on calendar and "defense counsel never informed me that he was objecting to any type of continuance on the case and we discussed a future date of either March 8, 2019 or the week after to conduct this hearing." The prosecutor also learned his office had failed to subpoena the witnesses for the case. The witnesses were unavailable on March 1, but they would all be available on March 12.
According to the prosecutor "[t]his date was agreed upon by myself and counsel . . . prior to the case being called this morning. At no time did counsel inform me that there would be any objection to the request to set new dates. [¶] Today, I discovered counsel objected to the brief continuance when the case was ultimately called by the calendar deputy appearing on my behalf. Since we are in reasonable time, and due to clerical error, I am not able to proceed to prelim today and I am requesting a brief continuance to March 12, 2019 to conduct this hearing."
When the court recalled the case to hear argument on the 1050 motion, the prosecutor reiterated the subpoena issues set out in his declaration and said he did not have any witnesses available to testify. The court responded "[t]hat's not good cause." "And the last time that it looks like it was set on March 1st the defense answered ready and there was an officer unavailable. So are you able to proceed today?" The prosecutor said he was not able to proceed and the court responded "[t]hen the case is dismissed for lack of prosecution." The minutes reflect "Case dismissed - pursuant to . . . 1385 - Furtherance of justice."
DISCUSSION
The People argue the dismissal should be reversed because: (1) the court failed to state any reasons for the dismissal on the record, and (2) even if the record contained sufficient reasons, the dismissal was an abuse of discretion. We disagree.
Section 1385 authorizes dismissal on the courts own motion in "furtherance of justice," and requires the reasons for the dismissal to "be stated orally on the record." (§ 1385, subd. (a).) Furtherance of justice "requires consideration both of 'the constitutional rights of the defendant and the interests of society" represented by the People, in determining whether there should be a dismissal." (People v. Winters (1959) 171 Cal.App.2d Supp. 876, 887.) The reason for dismissal must be "'"that which would motivate a reasonable judge."'" (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530-531.) We review the dismissal for abuse of discretion. (Ibid.)
The People cite two cases, People v. Beasley (1970) 5 Cal.App.3d 617 (Beasley) and People v. Orin (1975) 13 Cal.3d 937 (Orin) in support of their arguments, but both cases are readily distinguishable from the case at hand.
In Beasley, the court made an offer, whereby the codefendants would each plead guilty to a charge of robbery and rape, sentencing would be continued, and the court would request a report from probation. (Beasley, supra, 5 Cal.App.3d at pp. 623-624.) The court also stated it would dismiss additional charges "'pursuant to section 1385'" when it received the probation report. (Id. at p. 624.) The court later dismissed the additional charges stating only they were dismissed pursuant to section 1385. (Id. at p. 628.) In finding the dismissals to be an abuse of discretion, the Court of Appeal noted the trial court failed to meet the requirements of section 1385. (Id. at pp. 636-637.) It also pointed out the trial court based its dismissal solely on the guilty pleas and with "the lack of reasoned judgment" regarding the interests of society. (Ibid.)
At the time of Beasley and Orin were decided, section 1385 required the reasons for the dismissal to "be set forth in an order entered upon the minutes." (Former § 1385 amended by Sen. Bill No. 1222 (2013-2014 Reg. Sess.).)
Similarly, in Orin the defendant accepted a court offer to plead guilty to one count, and the court indicated it intended to dismiss two other counts pending a probation report. At the next hearing, the prosecution objected and moved to have the guilty plea withdrawn. The court denied the prosecution's motion and ruled, "'Well, the Court, especially after getting the probation report and it seems like there was some psychiatrist report in connection with that . . . which would indicate there would be probably a serious problem concerning the specific intent required as to the 211 robbery . . . still feels this would be the proper plea[.]" (Orin, supra, 13 Cal.3d at p. 941.) The court then dismissed the two counts as agreed. The court proceedings were reflected in a written "'Judgment,'" and "at the bottom of the form a box [was] checked indicating 'Remaining counts dismissed in the interests of justice.'" (Ibid.)
Our Supreme Court ruled the dismissals were "manifestly invalid under section 1385" because of the court's failure to set forth the reasons for the dismissal in an order as required by the statute. (Orin, supra, 13 Cal.3d at p. 943.) This failure was "fatal and is alone sufficient to invalidate the dismissal." (Ibid.) The court also found the dismissal to be an abuse of discretion because the record contained no reason for the dismissal other than "the defendant entered a plea of guilty to count III." (Id. at p. 948.) Thus, "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." (Id. at p. 948.)
In contrast to Orin and Beasley where the trial courts provided no reasons at all for their dismissals, the trial court in this case explained it was dismissing the case in the interest of justice due to the prosecution's inability to proceed. This explanation was sufficient to meet the statement of reasons requirement of section 1385.
Further, given the context here, the dismissal was not an abuse of discretion. Unlike Orin and Beasley, the court did not dismiss some charges simply because the defendant pleaded guilty to others. Instead, the court dismissed the whole case because the prosecution was unable to proceed after its request for a continuance was denied. The court considered the prosecutor's repeated inability to conduct the preliminary hearing, noting the prosecutor had sought a continuance after the defense announced ready at the previous court date. Additionally, the court did nothing to preclude the case from being prosecuted—the prosecutor was simply unable to proceed.
The prosecution was required to show good cause to continue the preliminary hearing. (People v. Alvarez (1989) 208 Cal.App.3d 567, 577-578 (Alvarez) [good cause under section 1050 is "applicable to any request for a continuance in a criminal case"].) The People's contrary argument based on People v. Kessell (1976) 61 Cal.App.3d 322 is not well founded. Kessell dealt only with the 10-day grace period afforded the prosecution via section 1382 when a defendant has waived the right to a trial within 60 days of arraignment. Kessell does not apply in the preliminary hearing context.
The trial court was faced with the option of either dismissing the case or beginning the preliminary knowing the prosecution did not have any witnesses to call. It might have been better to proceed with the preliminary hearing and dismiss the case pursuant to section 871 if the prosecution was unable present any evidence. (See Alvarez, supra, 208 Cal.App.3d at p. 578 [when the People fail to establish good cause for a continuance and are unable to go forward with the hearing, nothing in section 859b precludes the court from dismissing under section 871]; but see Landrum v. Superior Court (1981) 30 Cal.3d 1, 11 [section 871 does not authorize dismissal until after proofs have been heard].) But the dismissal under section 1385 was not an abuse of discretion.
Because we have concluded the court did not abuse its discretion by dismissing the case under section 1385, we need not address the People's alternative argument the court did not have the authority to dismiss under sections 859b and 1050. --------
DISPOSITION
The judgment is affirmed.
THOMPSON, J. WE CONCUR: O'LEARY, P.J. ARONSON, J.