Reset A A Font size: Print

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

The PEOPLE, Plaintiff and Appellant, v. Robert James FUNK, Defendant and Respondent.

Cr. 22392.

Decided: December 16, 1981

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., William D. Stein, Asst. Atty. Gen., W. Eric Collins, Herbert F. Wilkinson, Dane R. Gillette, Deputy Attys. Gen., San Francisco, for plaintiff and appellant. Jeffrey A. Haas, Ryan & Roduit, Margaret Ryan, San Francisco, for defendant and respondent.

The People appeal from a judgment of dismissal of a charge against defendant Funk that he had sold a narcotic in violation of Health and Safety Code section 11352.

There appears to be no dispute between the parties as to the relevant procedural and factual context of the case.

Funk, having waived a trial by jury, stood trial before the court on the charged offense. At the trial's end the court, as required by Penal Code section 1167, announced its findings upon the issue of fact,1 stating, “the court finds that there's no question the defendant committed the offense with which he is charged,” and then caused to be entered a minute order reciting: “The court finds that the evidence shows that defendant is guilty of the offense charged; ...”

But at the same time the court stated:

“However, the court does find that there was a discriminatory prosecution in this matter and that the testimony of Agent P ... was incredible and finds that he withheld evidence that could have resulted in the prosecution of both his niece and D ..., and as a result of that suppression of evidence, I'm going to order that the-whatever the appropriate order is. I guess it's find him not guilty of the charge.... Whatever the appropriate finding is, there should be a dismissal of the action rather than an acquittal. I think that's probably correct.... I'm not prepared to rule one way or the other. If you wish to submit authorities, I'll hold that ruling in abeyance as to whether it's an outright acquittal or whether it's a dismissal.... So I'll give you a week to do that.... Well, my decision is what I indicated it was. My findings are-that I find that Officer P ... was not a credible witness and as a result there was a discriminatory prosecution. The result of that finding I'll hold in abeyance, as to whether it results in an acquittal or a dismissal.... One week. Yes, that's fine. At 8:30.”

At the appointed time the trial court, after hearing argument of counsel, stated:

“Submitted? ... All right. If I didn't make it clear, I found the defendant guilty of the charge. I know I said something to the effect there's no question that he committed the sale. And then I indicated that I was going to dismiss the matter, and I am still going to follow that procedure. I think that dismissal is the appropriate procedure. But I want to make it clear that my finding was that (the) officer ... in effect, suppressed evidence from the prosecutor. (2 ) And if the prosecutor had had the evidence which he had, there would have been prosecution of the other two defendants. And that's the type of police conduct that I was disapproving of. And so it is really-although you can call it discriminatory prosecution, it's a discriminatory prosecution as a result of conduct by a police officer, which is just not right, in my opinion. I did not believe him. I believe that he saw a lot more than he testified to and I don't think that's right. So the matter is dismissed.... Well, there is no question that jeopardy has attached. And I think the only issue is whether or not they can appeal my dismissal. If I'd acquitted him, why, they wouldn't have had any right to appeal. And I think they have a legitimate thing to argue. But my findings are that, by golly, something like that shouldn't be permitted to happen.”

Thereupon, a minute order was entered that the “case be dismissed,” which was followed by a judgment decreeing “that the charge against the defendant, Robert J. Funk, be and hereby is dismissed.” The People's appeal is from that judgment.

Where, as here, a criminally accused defendant has waived trial by jury, an express finding of his guilt by the court is manifestly the legal and practical equivalent of a jury's guilty verdict. (See fn. 1, ante.)

We note initially that the People are authorized by Penal Code section 1238, subdivision (a)(4), to appeal from an order in arrest of judgment. Such an order in the context of the case before us is an order requiring that no judgment be entered upon a trial court's finding of a defendant's guilt. (See Pen.Code, s 1185.) The judgment of dismissal here under appeal was patently an appealable order in arrest of judgment, and we so hold.

Except where, for legal cause, an order arresting judgment should be and is entered upon a “finding or verdict of guilty ... the court must appoint a time for pronouncing judgment, ...” (Pen.Code, s 1191; emphasis added.)

At the appointed time for pronouncing judgment the court may grant probation if the convicted accused be eligible therefor, but with that single exception “the court has no discretion but to sentence the defendant ... as is provided by law.” (Stephens v. Toomey, 51 Cal.2d 864, 870, 338 P.2d 182; emphasis added.) “ ‘(T)he power of the court in dealing with an offender to be sentenced for judgment on a plea or verdict of guilty is limited to either sentencing the defendant, suspending execution of sentence and entertaining an application for probation, or withhold the imposition of judgment and place the defendant on probation. We have found no authorities to indicate that the court can arbitrarily dismiss the case. The situation is not like the one on a motion for a new trial, where the court has discretion to reweigh the evidence as on a duly entered plea of guilty, there is no evidence to be weighed. Thus, the court had no discretion except to sentence the defendant or grant probation in a lawful manner....’ ” (People v. Morrow, 275 Cal.App.2d 507, 514, 80 Cal.Rptr. 75; emphasis added; People v. Superior Court (Kasparek), 202 Cal.App.2d 850, 855, 21 Cal.Rptr. 178.)

It has elsewhere been said by the reviewing courts of this state (the emphasis is added): “ ‘The function of the courts is to determine the guilt or innocence of an accused. What disposition may thereafter be made by way of penalty is for the Legislature to determine’ ” (People v. Tanner, 24 Cal.3d 514, 519, fn. 3, 156 Cal.Rptr. 450, 596 P.2d 328; People v. Hess, 104 Cal.App.2d 642, 686, 234 P.2d 65); “Upon conviction it is the duty of the court to pass sentence on the defendant and impose the punishment prescribed.... Pursuant to this duty the court must either sentence the defendant or grant probation in a lawful manner; it has no other discretion” (People v. Cheffen, 2 Cal.App.3d 638, 641, 82 Cal.Rptr. 658); “(A)fter the guilty verdict ‘there remained nothing for the trial court to do other than to pronounce sentence’ ” (People v. Superior Court (Montano), 26 Cal.App.3d 668, 671, 102 Cal.Rptr. 539).

“ ‘ ”(F)urtherance of justice“ ‘ ” means justice to society (the People) as well as to a criminal defendant. “ ‘(A) dismissal which arbitrarily cuts those rights without a showing of detriment to the defendant is an abuse of discretion.’ ” (People v. Superior Court (Montano), supra, 26 Cal.App.3d 668, 670-671, 102 Cal.Rptr. 539; People v. Fretwell, 8 Cal.App.3d Supp. 37, 41, 87 Cal.Rptr. 356.) And there are to be found “ ‘no authorities to indicate that the court can arbitrarily dismiss the case.’ ” (People v. Beasley, 5 Cal.App.3d 617, 655, 85 Cal.Rptr. 501; People v. Morrow, supra, 275 Cal.App.2d 507, 514, 80 Cal.Rptr. 75; People v. Superior Court (Kasparek), supra, 202 Cal.App.2d 850, 855, 21 Cal.Rptr. 178.)

The basis of the trial court's conclusion of discriminatory prosecution was undoubtedly the well-known case of Murgia v. Municipal Court, 15 Cal.3d 286, 124 Cal.Rptr. 204, 540 P.2d 44. Murgia authorized dismissal of a prosecution, where a county's law enforcement authorities had entered upon a practice of “invidious discrimination” by means of “ ‘intentional, purposeful and unequal enforcement of penal statutes ....’ ” (Id., p. 301, 124 Cal.Rptr. 204, 540 P.2d 44.) Such a dismissal may be made upon motion of the defendant or upon the court's own motion, and the issue will be determined by the trial court, not a jury. (Id., pp. 293-294, fn. 4, 124 Cal.Rptr. 204, 540 P.2d 44.)

It will be seen that the posture of the case at hand is as though a jury had returned a guilty verdict, following which defendant moved that judgment be arrested (Pen.Code, s 1185) by dismissing the action for Murgia error. If such Murgia error existed, the action was properly dismissed. If it did not exist, the motion in arrest of judgment with the action's consequent dismissal should have been denied; the trial court thereupon would have had “no discretion but to sentence the defendant (or grant probation) as is provided by law.” (Stephens v. Toomey, supra, 51 Cal.2d 864, 870, 338 P.2d 182.)

Thus, our remaining inquiry is whether Funk's prosecution was tainted by Murgia error.

The trial court, it will be recalled, found “discriminatory prosecution as a result of conduct by a police officer” which “in effect, suppressed evidence from the prosecutor.”

The subject conduct of the police officer, unknown to the prosecution, concerned an unrelated narcotic investigation on the evening of Funk's arrest in which the officer suddenly observed that his brother's daughter was one of the suspects, and had exclaimed: “My God, that's my niece.” Although the Attorney General argues otherwise, it may reasonably be said that conflicting inferences might have been drawn whether the officer was less than diligent in his further investigation of the unrelated case, and less than forthright in his reported observations of it.

Murgia v. Municipal Court, supra, 15 Cal.3d 286, 124 Cal.Rptr. 204, 540 P.2d 44, holds that the Constitutions' “equal protection guarantee simply prohibits prosecuting officials from purposefully and intentionally singling out individuals for disparate treatment on an invidiously discriminatory basis” (id., p. 297, 124 Cal.Rptr. 204, 540 P.2d 44), for such reasons as their “race,” “religion,” membership in a trade union (as in that case), or other such unconstitutional and arbitrary classification (id., p. 300, 124 Cal.Rptr. 204, 540 P.2d 44). The court recognized “that administrative officials enjoy broad discretion in determining the specific circumstances under which established punitive sanctions should be invoked” (id., p. 296, 124 Cal.Rptr. 204, 540 P.2d 44), but nevertheless made it clear that “prosecuting” and “administrative” officials, and “all branches of government, including the executive” must not engage in its proscribed invidiously discriminatory prosecution (id., pp. 294-297, 305, 124 Cal.Rptr. 204, 540 P.2d 44).

More recent authority advises that Murgia is apposite only where (1) the criticized “ ‘prosecution would not have been pursued except for the discriminatory design of the prosecuting authorities' ” (People v. Superior Court (Hartway), 19 Cal.3d 338, 348, 138 Cal.Rptr. 66, 562 P.2d 1315), and (2) the accused “was engaged in protected activity, which activity resulted in his arrest” (People v. Milano, 89 Cal.App.3d 153, 164-165, 152 Cal.Rptr. 318). Such a “protected activity” will include the right of “ ‘association for the advancement of beliefs and ideas ’ ” as in Murgia (a trade union), assured by the First Amendment and the due process clause of the Fourteenth Amendment. (Sunset Amusement Co. v. Board of Police Commissioners, 7 Cal.3d 64, 74-75, 101 Cal.Rptr. 768, 496 P.2d 840.) And the concept will be extended to prosecutorial discrimination because of one's race, religion, sex, or other such arbitrary classification. (Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 505, 7 L.Ed.2d 446; Murgia v. Municipal Court, supra, 15 Cal.3d 286, 300, 124 Cal.Rptr. 204, 540 P.2d 44.)

Here, none of the conditions for Murgia's application is to be found.

We think the rule of Murgia will not be invoked in the case of a policeman who, as determined by the trial court, finds his official duty compromised by family concerns. The equal protection concept upon which Murgia's rule is founded applies to invidious classification. The policeman's claimed clandestine inaction of this case, unknown to his superiors or to the prosecutor, may not conceivably be deemed an abridgment of Funk's “protected activity” or other rights with which Murgia was deeply concerned.

No Murgia violation appears.

And it seems grossly unreasonable to conclude that because, as claimed in this case, a policeman erred in not pressing one narcotic investigation, Funk and other narcotic violaters should not be prosecuted for their unrelated crimes.

It is also found significant that on this appeal Funk makes no argument whatever in support of the trial court's determination of “discriminatory prosecution.”

The trial court accordingly erred in not denying the motion to arrest judgment and to dismiss, and in not appointing a time for pronouncement of judgment or determining a motion for probation as required by Penal Code section 1191.

We have not failed to consider Funk's only responsive appellate contention. He states it as: “The prosecution's appeal flies in the face of s 1238 of the California Penal Code and is taken in violation of the double jeopardy provisions of both the United States and California Constitutions.”

As we have pointed out, Penal Code section 1238, subdivision (a)(4), authorized the People's appeal from the trial court's “order arresting judgment.”

And: “The purpose of the constitutional provision against double jeopardy is to prevent harassment of a defendant by repeated trials on the same criminal charge.” (People v. Upshaw, 13 Cal.3d 29, 34, 117 Cal.Rptr. 668, 528 P.2d 756.) “The constitutional proscription against double jeopardy serves various important purposes. It prevents the state from having a second opportunity to marshal evidence which it failed to produce at the first opportunity. It reduces the risk that, by effectively lessening the People's burden of proof, an innocent person might be convicted. It protects an accused from the embarrassment, expense and ordeal of a second trial.” (In re Mendes, 23 Cal.3d 847, 855, 153 Cal.Rptr. 831.)

Here there has been and will be no second trial, nor is there threat of such a trial. Error following the here unquestioned judicial finding of Funk's guilt will be corrected, with the cause remanded for further and proper proceedings on that finding, according to Penal Code section 1191.

The order in arrest of judgment and the ensuing judgment of dismissal are reversed; the superior court will take such further proceedings as are not inconsistent with the views we have expressed.


1.  Penal Code section 1167 states, the “findings upon the issues of fact ... shall be in substantially the form prescribed for the general verdict of a jury ....”

2.  The record furnished us is silent as to what, if any, procedures were taken by the prosecutor upon his learning of the “suppressed evidence.”

ELKINGTON, Acting Presiding Justice.

GRODIN and RAGAN *, JJ., concur.