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Court of Appeal, First District, Division 1, California.

PEOPLE of the State of California, Plaintiff and Appellant v. Frank R. ROSAS, Defendant and Respondent.

Cr. 6976.

Decided: September 27, 1968

Thomas C. Lynch, Atty. Gen., Robert R. Granucci, James A. Aiello, Deputy Attys. Gen., San Francisco, for appellant. Sheldon Portman, Public Defender, County of Santa Clara, San Jose, for respondent.

The People appeal from an order dismissing two counts of an information against defendant.

By information No. 42959, filed February 17, 1967, defendant was charged with three felonies:  grand theft (violation of Pen.Code, § 484 1 ), receiving stolen property (violation of § 496), and petty theft with a prior felony conviction (violation of § 667);  and by information No. 42988, filed February 24, 1967, defendant was charged with two felonies, grand theft and receiving stolen property.   In each of the informations defendant was charged with a prior felony conviction.   Defendant entered pleas of not guilty to all of the charges in both informations, and as to the alleged prior conviction, defendant denied it at the time of his plea on the first information and stood mute on the second information.

Both informations were thereafter continued for trial from time to time on the court's motion until April 21, 1967, at which time the trial court (Hon. Peter Anello) granted the People's motion to consolidate the two informations for trial.   At the same time the trial court granted defendant's motion to dismiss information No. 42959 because of the prosecution's failure to bring that case to trial within 60 days and also granted the People's motion to dismiss information No. 42988 in furtherance of justice.2

By information No. 43260, filed on May 5, 1967, defendant was charged with five felonies and a prior felony conviction, counts 4, 5 and 1 of this information being identical to counts 1, 2 and 3, respectively, of information No. 42959 and counts 2 and 3 being identical to the two counts alleged in information No. 42988.   Thereafter defendant moved to dismiss the information under section 995, the ground for defendant's motion being that he had been deprived of his right to a speedy trial.   On May 29, 1967 the trial court (Hon. John T. Racanelli) granted defendant's motion as to counts 2 and 3 of information No. 43260 and denied the motion as to the remaining counts.   It is from this order that the People appeal.3

 The first argument advanced by the Attorney General is that the trial court was without jurisdiction to grant defendant's motion since an allegation of a denial of a speedy trial may not be raised in a motion to dismiss under section 995.   The cases uniformly hold that an indictment or information can be set aside under section 995 only upon those grounds listed in that section (People v. Van Randall, 140 Cal.App.2d 771, 774, 296 P.2d 68;  People v. Cowen, 41 Cal.App.2d 824, 826, 107 P.2d 659;  People v. Schmidt, 64 Cal. 260, 261, 30 P. 814;  People v. Kempley, 205 Cal. 441, 447–448, 271 P. 478;  People v. More, 68 Cal. 500, 503, 9 P. 461;  cf. People v. King, 66 Cal.2d 633, 644–645, 58 Cal.Rptr. 571, 427 P.2d 171;  holding that the defense of statutory grant of immunity is a proper ground for a motion to set aside an indictment under section 995;  see also Jennings v. Superior Court, 66 Cal.2d 867, 874–875, 59 Cal.Rptr. 440, 428 P.2d 304).   We are of the opinion, however, that under the circumstances in the instant case defendant's motion should be treated not as a 995 motion but as a motion to dismiss upon the basis of denial of a speedy trial, and that as such the trial court possessed jurisdiction to hear and pass upon such motion.

 As to the circumstances of this case which in our mind call for a recharacterization of defendant's motion as a motion to dismiss outside the scope of section 995, we refer to the fact that when the trial court brought up the subject of the propriety of defendant's motion insofar as he was attempting to raise the speedy trial issue by means of a motion under section 995, the district attorney expressly agreed that the trial court had jurisdiction to decide the issue as raised by defendant.   He not only acquiesced to the court's entertaining and passing upon the speedy trial issue at that time, but also acquiesced in defense counsel's implied request that the court not consider itself bound by defendant's original characterization of his motion.4  We point out, moreover, that at the time the motion was made, the trial court had jurisdiction to entertain and pass upon a motion to dismiss based upon an alleged denial of defendant's right to a speedy trial, and that, since the right to a speedy trial is not a fundamental right but rather a “privilege personal to the defendant” that may be waived if not asserted, it was proper and incumbent that defendant urge this right as soon as reasonably possible before trial.  (See People v. Wilson, 60 Cal.2d 139, 145, 146, 148, 32 Cal.Rptr. 44, 383 P.2d 452.)

The basis of defendant's motion that he was denied his right to a speedy trial was that section 1387, which provides that the dismissal of an action under sections 1382 and 1385 is not a bar to a subsequent prosecution for a felony offense, is unconstitutional and that therefore, after the charges brought against him in informations Nos. 42959 and 42988 had been dismissed, these charges could not constitutionally be refiled against defendant in the instant action.   However, in granting defendant's motion as to counts 2 and 3 in the instant information the trial court did not hold section 1387 unconstitutional.   Rather it held that a trial of those counts violated defendant's right to a speedy trial and to due process as a result of the manner in which those counts, as previously alleged in information No. 42988, had been dismissed.

The record discloses that Judge Anello's ruling was made under the following circumstances:  On April 21, 1967 the action predicated upon information No. 42959 came on for trial in Judge Anello's department.   At that time the action based upon information No. 42988 was pending in Judge Anello's department in a “trailing position” on the trial calendar.   In the forenoon of said day the district attorney moved to consolidate the two actions for trial on the basis that the offenses charged against defendant were in the same class.   Although defendant's counsel objected to the consolidation he stated that he was prepared to proceed with the trial of both actions.   Judge Anello, noting that it was Friday and that all that would be accomplished that day was the selection of the jury and that counsel would thus have an opportunity to prepare for both cases prior to the following Monday when the trial would resume, ordered that the two actions be consolidated for trial.   A recess was thereupon taken until 2:00 p.m.

When the court reconvened at 2:00 p.m., defendant moved to dismiss information No. 42959 on the ground that he had not been brought to trial within 60 days on that information and that he had not consented to the continuance of a trial date beyond the 60–day period.   Judge Anello granted the motion to dismiss information No. 42959, and thereupon the People moved to dismiss information No. 42988 in the interest of justice.   The basis for this motion was that the district attorney was not prepared to try information No. 42988 alone, and that since the People were entitled to file another information for the offenses charged in information No. 42959, he desired to try the charges embraced by the two informations together in order to avoid a multiplicity of trials in view of the fact that there was pending against defendant other charges involving similar conduct in other courts.   The district attorney also stated that since the charges embraced in information No. 42988 were the more difficult to present, he desired to obtain more evidence in the case.

When defendant expressed opposition to the motion, Judge Anello indicated that he would deny the motion.   However, when the district attorney stated that he would not proceed with the trial of information No. 42988 and that he could not be compelled to do so, Judge Anello granted his motion.5  In the instant case Judge Racanelli, in commenting on the propriety of Judge Anello's ruling, stated that although the People have a right to move for a dismissal under section 1385, the granting or denial of such motion is within the discretion of the trial court, “but when that motion is couched in the same terms that in any event there is not going to be any prosecution * * * in effect it has rendered the exercise of the court's discretion, under those limited circumstances, of a very narrow application, namely, it can only grant the motion.”

 Turning to the question of the propriety of the trial court's action in the instant case, we first note that the right to a speedy trial is granted by article I, section 13 of the California Constitution and is given definiteness by section 1382, subdivision 2, which requires a trial in the superior court within 60 days after the filing of an indictment or information, “ ‘unless good cause to the contrary is shown.’ ”  (People v. Salcido, 263 A.C.A. 1, 3–4, 69 Cal.Rptr. 193, 195;  People v. Wilson, supra, 60 Cal.2d 139, 145, 32 Cal.Rptr. 44, 383 P.2d 452;  People v. Godlewski, 22 Cal.2d 677, 682, 140 P.2d 381.)

The right to a speedy trial is also guaranteed to a defendant by the Sixth Amendment of the United States Constitution which applies to the states through the Fourteenth Amendment of that Constitution.  (Klopfer v. North Carolina, 386 U.S. 213, 222–223, 87 S.Ct. 988, 18 L.Ed.2d 1, see People v. Salcido, supra, 263 A.C.A. 1, 3–4, 69 Cal.Rptr. 193.)   Under the federal guarantee, however, the essential ingredient is orderly expedition rather than mere speed.  (United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 15 L.Ed.2d 627;  People v. Salcido, supra.)   The applicable federal principle is stated thusly in Ewell:  “This guarantee is an important safeguard to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delay will impair the ability of an accused to defend himself.   However, in large measure because of the many procedural safeguards provided an accused, the ordinary procedures for criminal prosecution are designed to move at a deliberate pace.   A requirement of unreasonable speed would have a deleterious effect both upon the rights of the accused and upon the ability of society to protect itself.  * * * ‘The right to a speedy trial is necessarily relative.   It is consistent with delays and depends upon circumstances.   It secures rights to a defendant.   It does not preclude the rights of public justice.’   [Citation.]  ‘Whether delay in completing a prosecution * * * amounts to an unconstitutional deprivation of rights depends upon the circumstances.  * * * The delay must not be purposeful or oppressive,’ [citation].  ‘[T]he essential ingredient is orderly expedition and not mere speed.’  [Citation.]”  (P. 120, 86 S.Ct. p. 776.)

 Adverting to California law, we note that defendant's motion in the instant case was directed to information No. 43260, filed on May 5, 1967.   This was the only action pending against defendant.   Accordingly, the granting of the motion as to counts 2 and 3 on May 29, 1967 occurred only 24 days after the filing of the information and prior to the expiration of the 60–day period provided in section 1382.   Therefore, defendant was not deprived of a speedy trial on the charges contained in information No. 43260.

 Moreover, the fact that counts 2 and 3 in the instant information were identical to the two counts which had been charged in information No. 42988, which had been filed on February 24, 1967, and dismissed under section 1385 on April 21, 1967 does not alter our conclusion that defendant was not deprived of a speedy trial on the charges contained in information No. 43260.   It is well settled that the dismissal of a felony prosecution under sections 1382 and 1385 does not bar a prosecution for the same offense (§ 1387;  People v. Lo Cigno, 237 Cal.App.2d 470, 472, 46 Cal.Rptr. 918 [first proceeding dismissed under § 1385];  People v. MacCagnan, 129 Cal.App.2d 100, 112, 276 P.2d 679 [first proceeding dismissed under § 1385];  People v. Allen, 220 Cal.App.2d 796, 800, 34 Cal.Rptr. 106 [first proceeding dismissed under § 1385] ), and that with respect to the 60–day period for bringing a case to trial (§ 1382, subd. 2) such period is reinstated after the filing of a new information or indictment whether or not a new or different charge is involved.  (People v. Allen, supra;  People v. Wilkes, 177 Cal.App.2d 691, 697, 2 Cal.Rptr. 594;  People v. Pierson, 149 Cal.App.2d 151, 159, 307 P.2d 994.)

 The mere fact that the offense charged in an information is the same as that charged in a previous information which was dismissed in furtherance of justice does not establish any legal relation or connection between the two informations—each is a separate proceeding authorized by statute and complete in itself.  (People v. Grace, 88 Cal.App. 222, 228–229, 263 P. 306;  In re Begerow, 136 Cal. 293, 296–297, 68 P. 773, 56 L.R.A. 528;  People v. MacCagnan, supra, 129 Cal.App.2d 110, 112–113, 276 P.2d 679;  People v. Ferrera, 149 Cal.App.2d 850, 853, 309 P.2d 533;  see People v. Prewitt, 52 Cal.2d 330, 339–340, 341 P.2d 1.)   Accordingly, the dismissal of a previous information terminates that proceeding and, so far as the information is concerned, effectively disposes of it as though it had never been filed.  (People v. Grace, supra, 88 Cal.App. at p. 229, 263 P. 306;  People v. MacCagnan, supra, 129 Cal.App.2d at p. 113, 276 P.2d 679.)   Moreover, an order dismissing a prosecution ends the action commenced by the pleading upon which it is based, not by any judgment upon the merits of the case, but by an order in the nature of a judgment of nonsuit which is merely an expression of the opinion of the court that the proceeding ought not to be prosecuted further.  (In re Begerow, supra, 136 Cal. at p. 297, 68 P. 773;  People v. Ferrera, supra, 149 Cal.App.2d at p. 853, 309 P.2d 533.)

 In dismissing counts 2 and 3 of information No. 43260 upon the ground that a trial on these charges violated defendant's right to a speedy trial, Judge Racanelli expressed displeasure concerning the manner in which the dismissal of information No. 42988 was effected and stated that the dismissal of that information deprived defendant of a speedy trial and due process.   It is apparent, therefore, that Judge Racanelli purported to pass upon the propriety of Judge Anello's order of dismissal and, in effect, acted in review of Judge Anello's exercise of discretion in dismissing information No. 42988.   In so doing, Judge Racanelli acted in excess of his jurisdiction.

At the time Judge Racanelli purported to pass upon the propriety of Judge Anello's dismissal of information No. 42988, that information was no longer in existence and the action it initiated was no longer pending.   Moreover, the dismissal effectively disposed of that information as if it had never been filed.   Even Judge Anello had lost jurisdiction to reconsider his action, had he been so disposed.   In Bates v. Superior Court, 107 Cal.App.2d 656, 657–658, 237 P.2d 544, it was held that where a court grants a motion to dismiss a criminal accusation, the court is without jurisdiction to act further in the matter and it may not reinstate the accusation.   Thus, since Judge Anello's action amounted to the exercise of judgment it could not be set aside or amended for judicial error by him and could be reviewed and set aside only in the modes prescribed by statute.  (Bates v. Superior Court, supra;  Holtum v. Greif, 144 Cal. 521, 524–526, 78 P. 11;  Stevens v. Superior Court, 7 Cal.2d 110, 112–113, 59 P.2d 988.)   In this regard, we note that review of a dismissal under section 1385 can only be had by the People by means of a petition for writ of mandate.  (People v. Superior Court, 202 Cal.App.2d 850, 853–858, 21 Cal.Rptr. 178;  People v. Superior Court, 202 Cal. 165, 173–175, 259 P. 943;  People v. Superior Court, 249 Cal.App.2d 714, 715, 718, 57 Cal.Rptr. 892;  see State Farm, etc., Ins. Co. v. Superior Court, 47 Cal.2d 428, 432, 304 P.2d 13;  Hays v. Superior Court, 16 Cal.2d 260, 265, 105 P.2d 975.)

 It must also be pointed out that jurisdiction is vested by the state Constitution in the superior court and not in any particular judge or department, and whether sitting separately or together the judges hold but one and the same court.  (Williams v. Superior Court, 14 Cal.2d 656, 662, 96 P.2d 334;  People v. Grace, 77 Cal.App. 752, 759, 247 P. 585.)   Accordingly, where one department of the superior court exercises the jurisdiction vested in it by the Constitution in the superior court of that county, it is beyond the jurisdictional authority of any department of the same court to interfere with the power of the department to which a proceeding has been regularly assigned.  (Williams v. Superior Court, supra;  Regents v. Superior Court, 185 Cal.App.2d 806, 809–810, 8 Cal.Rptr. 629.)   Here, although no attempt was made to interfere with Judge Anello's jurisdiction while he was exercising it, the effect of Judge Racanelli's order was to declare void the former's prior order made under jurisdictional authority.   Accordingly, we have conflicting adjudications of the same subject matter by different departments of the same court.   Judge Anello's order, however, was the order of the superior court and it was binding and effecting upon other departments of that court.  (See People v. Grace, supra;  Williams v. Superior Court, supra, 14 Cal.2d at pp. 662–663, 96 P.2d 334.)

Judge Anello's order dismissing information No. 42988 was not a preliminary or interlocutory matter so as to permit another judge of the same court exercising jurisdiction of the cause to reverse or modify a prior ruling by another judge as, e.g., in the case of intermediate rulings or pleadings or upon procedural matters.  (See Vertex Inv. Co. v. Schwabacher, 57 Cal.App.2d 406, 410, 134 P.2d 891;  Timm v. McCartney, 9 Cal.App.2d 230, 232, 49 P.2d 315;  Wrightson v. Dougherty, 5 Cal.2d 257, 265, 54 P.2d 13;  Davis v. Conant, 10 Cal.App.2d 73, 75, 51 P.2d 151.)   To the contrary, his order was, as pointed out above, res judicata on the issue as to whether information No. 42988 should have been dismissed in furtherance of justice.   That issue was fully litigated, it affected substantial rights, and was subject to review by mandamus.  (See People v. Joseph, 153 Cal.App.2d 548, 551, 314 P.2d 1004.)   In this regard we must distinguish between the issue involved in the dismissal in furtherance of justice to which res judicata applies and the fact that such dismissal is not a bar to a subsequent prosecution.

We turn to the question whether defendant was deprived of a speedy trial under the federal Constitution.   Preliminarily, we note that at the time defendant's motion to dismiss the counts which are the subject of this appeal 94 days had elapsed from the time of the filing of the original information (No. 42988) embracing these counts.   As already pointed out, the People were prepared to proceed with the trial on these counts on April 21, 1967, less than 60 days after the filing of the information.   The trial did not proceed because of the circumstances heretofore set out which were initiated by defendant when he availed himself of the right under California law to move, under section 1382, for a dismissal of information No. 42959 on the basis that it had not been brought to trial within 60 days.   This motion was made after defendant indicated on April 21, 1967 that he was prepared to proceed with the trial on the consolidated informations.   Although it is apparent that the district attorney was intransigent and obstinate in the position taken by him that he could not be forced to trial on information No. 42988 after it had been severed from information No. 42959, it is apparent that he did so on the basis that he was entitled to move to dismiss information No. 42988 in furtherance of justice and that he could file a new information on the charges therein made under section 1387.

 Although the district attorney was not justified in his obstinacy and persistence, and while his motives may be suspect, the fact remains that the dismissal was ordered by the court in the exercise of its discretion.   It must be here pointed out that a new information was filed 14 days after this dismissal.   These charges have not been brought to trial because of any action or conduct of the People, but because defendant prevailed in his motion to dismiss which is the subject of this appeal.   Under the circumstances we cannot say that the delay in bringing the subject charges to trial has resulted from the “purposeful or oppressive” conduct of the People.   We therefore conclude that the delay resulting from the actions of the People is within the allowable limits of the Ewell case.   In Ewell it was held that the mere passage of 19 months between the original arrests and the hearings on the indictments was not ipso facto a violation of the Sixth Amendment's guarantee of a speedy trial, and that under the circumstances there presented the interval did not violate the speedy trial provisions of the Constitution.   We note, moreover, that in Salcido, supra, it was held that the guarantee of a speedy trial under the Sixth Amendment was not denied by the fact that the defendant was not retried until 84 days after the filing of a remittitur following an appeal.

 Adverting to defendant's contention that the trial court's ruling was correct because section 1387 is unconstitutional, we note that the basis for this claim is that the statute permits the indefinite postponement of the prosecution of an indictment or information so as to deny a defendant a speedy trial guaranteed him by both the California and the United States Constitutions.   In considering this contention we first note that section 1387 has been held not to be violative of the California Constitution (In re Begerow (1902), supra, 136 Cal. 293, 296, 68 P. 773, 56 L.R.A. 528;  People v. Kerrick (1904) 144 Cal. 46, 48, 77 P. 711;  People v. Dawson (1930) 210 Cal. 366, 369–371, 292 P. 267) or the federal Constitution.   (People v. Dawson, supra.)   In Begerow, the California Supreme Court, speaking of the constitutional implications involved in the concept of a speedy trial, noted that this constitutional right primarily has to do with personal liberty and that the right is satisfied when it is provided by statute that if the defendant is denied his speedy trial the prosecution shall be dismissed and he shall be set at liberty, although such provision provides that such dismissal shall not be a bar to a further prosecution.  (136 Cal. pp. 296–297, 68 P. 773.)

Defendant, relying upon Klopfer v. North Carolina (1966), supra, contends that the effect of this decision is to overrule the California decisions and to declare, in essence, that statutes similar to section 1387 violate the right to a speedy trial guaranteed by the federal Constitution.   In Klopfer it was held that a North Carolina nolle prosequi statute was unconstitutional because it had the effect of indefinitely postponing the prosecution over a defendant's objection and without a stated justification.   Under the subject nolle prosequi statute the proceedings under the indictment were not terminated by the taking of a nolle prosequi, the prosecution could be reinstated at any time, and the statute of limitations remained tolled.   In striking down the statute the Supreme Court did so on the basis that a defendant was denied an opportunity to exonerate himself in the discretion of the prosecutor and held subject to trial, even for a misdemeanor, for an unlimited period during which period no means was provided by which he could obtain a dismissal.

We think that the procedure condemned in the Klopfer case is clearly distinguishable from the California procedure.   Preliminarily we note that the nolle prosequi has been abolished in California since 1872 (§ 1386).   We also note that in Klopfer section 1382 is cited as an example of a statute providing an affirmative protection against an unjustified postponement of a trial.  (See p. 219, fn. 4 of 386 U.S., 87 S.Ct. 988, 18 L.Ed.2d 1.)   In California, although section 1387 provides that an order of dismissal does not bar a prosecution for the same offense if it is a felony, an indefinite postponement of the prosecution of an indictment or information without justification is not permitted by our Constitution or our statutes.   A dismissal, whether under section 1382 or 1385, effectively wipes out an indictment or information as if it had never been filed, and it does not toll the statute of limitations.   Moreover, section 1382 provides for an effective protection against the unwarranted successive prosecutions under section 1387, particularly when our statutes must be applied within the allowable limits set down by the Ewell case.

We note, finally, that within the purview of article I, section 13 of the California Constitution, there is judicial precedent in this state for the dismissal of a charge for excessive or unexcused delay in bringing a criminal defendant to trial even though the particular delay is not specifically covered by or does not come within any of the mandatory dismissal statutes.  (See People v. Flores, 262 A.C.A. 317, 325, 68 Cal.Rptr. 669;  and see People v. Clark, 62 Cal.2d 870, 882–883, 44 Cal.Rptr. 784, 402 P.2d 856.)   However, for the reasons hereinabove set out this rule is not applicable to the present case.

The order is reversed.

MOLINARI, Presiding Justice.

SIMS and ELKINGTON, JJ., concur.

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