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Court of Appeal, First District, Division 3, California.

The PEOPLE of the State of California, Petitioner, v. The SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF MARIN, Respondent; Loverd HOWARD, Real Party in Interest.

Civ. 24777.

Decided: December 15, 1967

Thomas C. Lynch, Atty. Gen., Albert W. Harris, Jr., Asst. Atty. Gen., Derald E. Granberg, Deputy Atty. Gen., Bruce B. Bales, Dist. Atty., of Marin County, San Francisco, for petitioner. Jerome C. Durham, Public Defender, Harold J. Truett, Deputy Public Defender, County of Marin, San Rafael, for real party in interest.

A jury found Loverd Howard, real party in interest, guilty of two counts of armed robbery (Pen. Code, § 211). He moved for new trial. The trial court neither granted nor denied this motion, but dismissed the information, purporting to act under the authority of Penal Code, section 1385. The People sought mandate to compel vacation of the ordered dismissal. We issued alternative writ.

The trial judge filed a lengthy memorandum. In it, he concedes that the two victims of the robbery identified defendant as the robber who held the gun on them, while his accomplice took their money. The judge's review of the evidence repeatedly emphasizes the need of proof beyond a reasonable doubt and to a moral certainty, as distinguished from mere preponderance of the evidence. At one point, his memorandum states the question before him to be ‘Even though the evidence preponderates heavily in favor of the prosecution, does it leave me with ‘an abiding conviction to a moral certainty of the truth of the charge?’' The opinion lays no stress upon the defense of alibi, and thus does not turn upon credibility of the alibi evidence. Impliedly conceding that the evidence is adequate to sustain the conviction on appeal, the judge concludes that it is insufficient ‘to prove the defendant's guilt beyond a reasonable doubt.’

The court then opined that the prosecution had no additional evidence to produce on retrial. This conclusion is based solely upon a comparison of the transcript of the preliminary examination with the evidence introduced at trial. The court apparently did not follow the somewhat obvious course of asking the prosecutor, at argument on the motion for new trial, whether he in fact could produce additional evidence corroborating the identification of the two victims. The opinion then cites United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, for the rule that a pretrial lineup, which had been had here, may infect courtroom identification evidence of the witnesses who had observed the lineup, and concluded erroneously that the two victims could therefore give no identification testimony at a new trial. Upon these grounds, the court dismissed the information and discharged defendant from custody.

The People may appeal only from those orders and judgments specified by statute (Pen.Code, § 1238). The order before us is not within section 1238, and thus is not appealable (People v. Valenti, 49 Cal.2d 199, 205, 316 P.2d 633).

Mandate, however, will lie to compel vacation of an order of dismissal which is either in excess of jurisdiction (People v. Superior Court, 202 Cal.App.2d 850, 21 Cal.Rptr. 178; see People v. Superior Court, 202 Cal. 165, 259 P. 943), or which constitutes an abuse of discretion (People v. Superior Court, 249 A.C.A. 817, 57 Cal.Rptr. 892).

Petitioner urges that the trial court had no jurisdiction to dismiss after jury verdict of conviction. But the cases upon which it relies (People v. Superior Court, 240 Cal.App.2d 90, 49 Cal.Rptr. 365; People v. Superior Court, supra 202 Cal.App.2d 850, 21 Cal.Rptr. 178) are readily distinguishable upon their facts. In light of the origin and nature of the power granted by section 1385 (People v. More, 71 Cal. 546, 12 P. 631) and the comments of the Supreme Court as to the stage at which the statutory power of dismissal may be exercised (e. g., People v. Sidener, 58 Cal.2d 645, 649, 25 Cal.Rptr. 697, 375 P.2d 641; People v. Polk, 61 Cal.2d 217, 228, 37 Cal.Rptr. 753, 390 P.2d 641; People v. Alverson, 60 Cal.2d 803, 807, 36 Cal.Rptr. 479, 388 P.2d 711), we reject the contention that jurisdiction under section 1385 ends when the verdict is returned. Normally, judicial restraint and respect for the function and responsibilities of the prosecutor's office will minimize use of this power except upon concurrence of the prosecution, but we cannot declare the power non-existent.

There remains the question whether the dismissal amounted to an abuse of discretion by the trial court. We do not in any way question the right of the trial court to grant a new trial. When preponderance of the evidence of guilt is conceded, it seems to us difficult to say that the proof nonetheless falls short of the faint, fine and wavy line on one side of which the proof is beyond a reasonable doubt and to a moral certainty. For purposes of this opinion, however, we assume that the line may be drawn by the trial judge. But no ruling whatever was made on the new trial motion, and we are here concerned only with the dismissal.

Dismissal is a far more drastic step than grant of a new trial. Some additional circumstances, over and above the showing required for new trial, are obviously necessary to warrant it. Harassment, of course, would be such a factor. Here, however, there is no suggestion, however remote, of any intent to delay or harass. Nor is there such a paucity of evidence as to warrant the conclusion that the case should not have been brought to trial at all. Rather, the opinion of the trial judge implicitly recognizes that a preponderance of evidence supports the conviction.

The trial court concluded ‘from a comparison of the preliminary hearing transcript with the testimony received at trial’ that the prosecution has no additional evidence. This is an obvious non sequitur. The prosecutor offered at the preliminary what he felt was adequate for a holding order. The action of the magistrate (the same judge who, on assignment, sat in the superior court and tried the case) confirmed the prosecutor's estimate. Similarly, the jury's verdict substantiates the prosecution's view of the quantum of evidence required at trial. In the present congestion of trial calendars in many courts, it would be a gross disservice to promulgate a rule which would require prosecutors to introduce all available evidence in every case. Prosecutors, like other counsel, are entitled to avoid the common error of over-trying their cases, and busy courts should encourage that restraint.

The alternate ground for dismissal is based upon an error of law. The court felt that the rule of United States v. Wade, supra, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, would bar introduction of the identification evidence of the two robbery victims on retrial. This view misconstrues Wade itself, since the prosecution would, in any case, have an opportunity on retrial to establish that the ‘in-court identifications' were not infected by the pretrial lineup. Most important, an opinion filed at the same time as Wade (Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199), holds that the rule of Wade applies only to lineups conducted after June 12, 1967, the date of Wade and Stovall decisions. The lineups here preceded that date. California also applies Wade only prospectively (People v. Feggans, 67 A.C. 447, 451, 62 Cal.Rptr. 419, 432 P.2d 21).

It follows that there is no sound basis for the order of dismissal. Discretion is abused when the court ‘exceeds the bounds of reason’ (State Farm, etc., Ins. Co. v. Superior Court, 47 Cal.2d 428, 432, 304 P.2d 13). An otherwise laudable attempt to expedite court business may be overzealous, and thus an abuse of discretion (Whalen v. Superior Court, 184 Cal.App.2d 598, 601, 7 Cal.Rptr. 610). Dismissal under section 1385 has the objective of ‘furtherance of justice.’ That term requires consideration of the interests of society as well as those of the defendant (People v. Gonzales, 235 Cal.App.2d Supp. 887, 890, 46 Cal.Rptr. 301). The discretion granted by section 1385 requires ‘more than the substitution of the predilections of a judge for the alleged predilections of the peace officers' (People v. Winters, 171 Cal.App.2d Supp. 876, 882, 342 P.2d 538).

Neither of the reasons for dismissal advanced by the trial court is sound. The circumstances of this case reveal no other supportable basis for dismissal. We conclude that the order of dismissal amounted to an abuse of discretion (People v. Superior Court, supra, 249 A.C.A. 817, 57 Cal.Rptr. 892).

Remand for determination of the still pending motion for new trial is required. No issue of double jeopardy arises if the motion be denied. If it be granted, it will be by ruling upon defendant's motion, and that defense will thus be unavailable (1 Witkin, Calif. Crimes, § 215).

Let peremptory writ of mandate issue, directing the trial court to vacate its order of dismissal and to hear and pass upon the hitherto undetermined motion for new trial.

DRAPER, Presiding Justice.

SALSMAN, and BRAY,* JJ., concur.

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