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District Court of Appeal, First District, Division 2, California.

The PEOPLE of the State of California, Plaintiff and Appellant, v. Joe John VALENTI, Defendant and Respondent.*

Cr. 3246.

Decided: February 07, 1957

Edmund G. Brown, Atty. Gen., of the State of California, Clarence A. Linn. Asst. Atty. Gen., John S. McInerny, Deputy Atty. Gen., for appellant. E. M. De Mattei, A. F. De Marco, San Jose, for respondent.

This is an appeal by the People from an order dismissing the Information against defendant on the ground of the illegality of defendant's arrest.

Defendant and respondent, Joe Valenti, was charged by an Information with a felony, a violation of Penal Code, § 337a, subd. 6 (illegal wagering on football game results). He pleaded not guilty. Trial by jury commenced on April 11, 1956. Testimony was given by several witnesses for the prosecution and on the following day two witnesses for the prosecution were examined in the absence of the jury. The court having concluded that there had not been reasonable grounds for arresting defendant without a warrant, made an order dismissing the Information, and discharged the jury.

The record shows that prior to defendant's arrest the sheriff's office of Santa Clara County received an anonymous telephone call informing them that a liquor store in a certain part of San Jose was distributing cards used in illegal wagering on the results of college football games. Deputy Sheriff Barlow was then assigned to attempt to lay bets on football games at this liquor store. He placed several bets by means of the selection cards upon which the games were listed and odds given as to the results. The sheriff's office had been informed that the bets were collected on Friday nights at about ten o'clock. The officers had knowledge that respondent had a record of being arrested and fined for two misdemeanors relating to a similar type of activity. Checking license numbers through the State Motor Vehicle Department, they learned that respondent's car was one of the cars that they had observed parked in the vicinity of the liquor store on two Friday nights. Respondent was arrested, on a Friday night, November 18, 1955, without a warrant. He had been observed going into and leaving the liquor store, and was standing across the street from it when arrested. Captain Salt of the sheriff's office testified that on the night of November 18, and prior to the arrest, Mr. Stewart, a clerk in the liquor store, advised Salt that he was receiving the tickets from respondent Valenti, and that the pay-offs were made by him.

Respondent contends that the appeal should be dismissed because the order made by the trial court is not appealable. The People have no right of appeal except in the cases specified in Penal Code, § 1238, and respondent maintains that the order made herein does not fall within any of the six subdivisions of that section. Even if it be assumed that the order was erroneous, respondent points out that no statutory provision has been made for a right of appeal in such instance.

In the present case the question before the trial court for its decision was whether or not the evidence was admissible, and it was objected to by respondent on the ground that it had been obtained as the result of an illegal arrest. The court, after hearing the testimony surrounding the arrest, decided that there were reasonable grounds for obtaining a warrant of arrest, but that there were insufficient grounds for arrest without a warrant. Instead of ruling that the evidence was inadmissible and allowing the case to go to the jury, the court announced to counsel that he was dismissing the information for insufficiency of the evidence based on lack of reasonableness of the arrest. The jury was then called in and discharged, the court stating that there was no question to be presented to the jury, and the Court had, therefore, on its own motion dismissed the information. Bail was then exonerated, and the defendant discharged. Respondent argues that the order herein was an order dismissing the action and a final determination of the case, and since the court had power to dismiss the action, the order made herein was in effect a dismissal of the action.

The respondent contends that the order is not appealable citing the opinion of the Supreme Court in denying a hearing in People v. Knowles, 27 Cal.App. 498, 506, 155 P. 137; People v. Morris, 115 Cal.App.2d 585, 252 P.2d 681 and People v. Baxter, 119 Cal.App.2d 46, 258 P.2d 1093. These cases hold that no appeal lies from an order of dismissal entered after the empanelment of a jury.

The People rely on People v. Burke, 47 Cal.2d 45, 301 P.2d 241, as overruling these decisions.

The Supreme Court in People v. Burke, 47 Cal.2d 45, 301 P.2d 241, does not expressly disapprove its own decision denying rehearing in People v. Knowles, 27 Cal.App. 498, 155 P. 137, or the decisions in People v. Morris, 115 Cal.App.2d 585, 252 P.2d 681, and People v. Baxter, 119 Cal.App.2d 46, 258 P.2d 1093. It is difficult to discover a tacit overruling of these decisions in the Burke opinion. The Supreme Court there dealt with an order made after the defendant was found guilty of the offense charged. This order reduces the punishment imposed by striking the charge of a prior offense. There is some language suggesting that such an order could be appealable under Subdivision 1 of Penal Code, § 1238. However, the People had not appealed. They asserted impropriety of the order striking the charge of a prior offense only as respondent. The opinion's statements as to appealability merely establish the basis for the statement that ‘Regardless of whether the action * * * be regarded as ‘an order setting aside (a part of the) * * * information’ or as ‘an order modifying the verdict or finding by reducing the degree of the offense or the punishment imposed,’ it would appear that the People, if they were successfully to attack such action, must not only not have assented to it but must have taken an appeal.' [47 Cal.2d 54, 301 P.2d 246.] Neither had been done, and we do not view the affirmance of the judgment as a holding that an order such as is involved in the case at bar is appealable.

In any event, it is entirely clear that defendant has been once in jeopardy, and that reversal and remand for new trial would therefore be futile. Defendant did not appeal, and thus there can be no application of the rule that an appealing defendant, in seeking reversal and new trial, waives the defense of double jeopardy. Here the People appeal. They concede that the point at which jeopardy attaches was passed in this case. They argue, however, that defendant waived his defense of double jeopardy by accepting the benefits of the order of dismissal. This claim amounts only to the assertion that defendant should have taken the affirmative step of objecting, in the trial court, when the court on its own motion ordered the dismissal. No authority is cited, and we can find none, which supports this novel theory. Reason would seem clearly to negative the view that a defendant must seek to stop action by the trial court, which he has not sought by motion or otherwise, in order to avoid the waiver of a fundamental right.

It is true that the defense of former jeopardy must be pleaded, and that failure affirmatively to plead it is a waiver of the defense. However, as was pointed out by Judge (now Mr. Justice) Schauer in People v. Matiasevich, 12 Cal.App.2d Supp. 759, 55 P.2d 942, 943: ‘The lower court, even if a new trial were granted by this court, could not lawfully try the defendant again (at least, in the absence of his consent thereto and his resistance to this appeal negatives such consent).’

Under these circumstances, there can be no reversal of the judgment, even though we recognize fully the error of the trial court.

The appeal is ordered dismissed.

KAUFMAN, Justice.

DOOLING, Acting P. J., and DRAPER, J. pro tem., concur.