Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Robert W. Armstrong (retired judge of the L.A. Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.), James T. Warren, and Edward D. Webster, Judges. Case No. E047003 reversed with directions; Super.Ct. Nos. RIF130514, RIF145687
Judge Armstrong dismissed the charges in case No. RIF130514. Judge Warren dismissed the complaint in case No. RIF145687, and Judge Webster denied the People’s motion to reinstate that complaint.
Rod Pacheco, District Attorney, and Alan D. Tate, Deputy District Attorney, for Plaintiff and Appellant.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Respondent.
OPINION
HOLLENHORST Acting P. J.
I. INTRODUCTION
In case No. E047003, the People appeal from the trial court’s dismissal of the charges against defendant Alanzo David Tenorio in case No. RIF130514. We conclude that the order of dismissal was invalid because the trial court failed to state its reasons in the minute order. We will therefore reverse and remand the matter to the trial court to set forth in a written order entered in the minutes its reasons for the dismissal.
In case No. E047680, the People appeal from the trial court’s denial of the motion to reinstate the complaint subsequently filed against defendant on the same charges in case No. RIF145687. As with case No. RIF130514, we conclude the order of dismissal was invalid because the trial court failed to state its reasons in the minute order. However, because we conclude that the trial court erred in dismissing the charges in case No. RIF130514, the appeal from the order denying the motion to reinstate the subsequent complaint is moot.
We have consolidated these cases for purposes of argument and decision.
II. FACTS AND PROCEDURAL BACKGROUND
The underlying facts are not in the record before us and, in any event, are irrelevant to any issue in these consolidated appeals.
A. Case No. RIF130514
Defendant was charged in a complaint with five counts of attempted murder (Pen. Code, §§ 664, 187, subd. (a), counts 1 & 6 through 9), discharging a firearm at an inhabited motor vehicle (§ 246, count 2), assault with a firearm (§ 245, subd. (a)(2), count 3), destruction of property (§ 594, subd. (b)(1), count 4), and two counts of unlawful participation in a criminal street gang (§ 186.22, subd. (a), counts 5 & 10) with associated street gang (§ 186.22, subd. (b)) and firearm use (§ 12022.53, subd. (d)) allegations. Following the preliminary hearing, the trial court held him to answer only on counts 1 through 3, 5, 9, and 10 and their enhancements, and the court dismissed the remaining counts and their enhancement allegations in the interest of justice.
All further statutory references are to the Penal Code unless otherwise indicated.
The counts were renumbered in subsequent pleadings. However, for ease of reference, we will use the original numbering.
The prosecutor nonetheless filed an information that included all 10 counts. Before trial, the trial court set aside the information under section 995 as to counts 4 and 6 through 9 and their associated allegations. Following trial, the jury was unable to reach a unanimous verdict on the remaining counts, and the trial court declared a mistrial.
However, count 4 in the information alleged criminal threats (§ 422) instead of destruction of property (§ 594, subd. (b)(1)) as had been alleged in the complaint.
The split was eight jurors for guilty and four jurors for not guilty.
Retrial began before Judge Jorge C. Hernandez, but following the presentation of part of the People’s case, he declared a conflict and recused himself. The parties stipulated that the trial could continue before another judge, and the case was assigned to Judge Robert W. Armstrong.
On September 19, 2008, after submitting several questions and requests for readback of testimony, the jury indicated it was unable to reach unanimous verdicts. The prosecutor requested the trial court to consider allowing additional closing arguments and also asked the court to consider how best to respond to the jury’s indication of a deadlock. The trial court responded: “All right. The Court placed no restrictions on time of your argument, and you did argue the case very thoroughly, and I feel that no further argument is necessary from either side.” The trial court further stated: “I feel under the circumstances of this case that because of the thoroughness of the argument on both sides, particularly on your side—you used approximately three times the amount of actual arguing minutes than the defense did—that you had every opportunity to argue the case in depth, and you did argue in depth, and the request to reopen is denied.”
Following further inquiry of the jury, during which it was revealed that the most recent vote had been 10 to 2, the trial court declared a mistrial and discharged the jurors. Counsel requested that the case be set for a trial readiness conference. The trial court noted that the case had already been tried twice and had ended in a jury deadlock each time. The trial court stated: “Well, I feel that in view of the fact that it was tried twice and both times was unable to—I think it is a waste of the Court’s time to try this case again. So at this time the Court will on its own motion dismiss the charges. Defendant is discharged.”
The prosecutor strenuously objected and asserted, among other things, that the trial court was exceeding its authority under section 1385. The trial court responded: “You are absolutely wrong in this matter. I had a talk with a supervising judge in the criminal department and told him that this would be my inclination if the jury did in fact hang, and he absolutely agreed with me and said there is no third bite of the apple in this building. So he agreed that if this were a deadlocked jury, that I should dismiss the case.”
The prosecutor argued that the charges were very serious and sought a few hours to brief the matter. The trial court responded: “No. I made my decision, and I don’t care to hear anything further. I have heard what you had to say. I disagree with you, and I think the appropriate thing to do in view of the fact that this case was so strenuously tried in this court by both sides—I think that good presentations were made. I think that everybody did their absolute best. And I think that under the circumstances it was understandable that the jury wasn’t able to reach a verdict, and the Court’s order stands, and I will not reconsider it further.”
The prosecutor objected that any policy to limit a prosecution to two trials was improper. The trial court stated: “The comment that was made by the supervising judge was made lightly, and perhaps I shouldn’t have quoted him. But I simply told him that this would be my inclination, and I wanted to know if he felt that there was a court policy against it, and he assured me there absolutely was not. It was a matter of my sole discretion. I have exercised my discretion. I don’t care to hear anything more about it.”
The trial court’s minute order merely stated that the various counts were “dismissed in the interest of justice. (1385 PC)”
Defendant was discharged and ordered released from custody, and this appeal ensued.
B. Case No. RIF145687
Following the two mistrials and the dismissal of the charges in case No. RIF130514, the Riverside County District Attorney attempted to refile a new felony complaint charging defendant with attempted murder (§§ 664, 187, subd. (a)), shooting at an inhabited dwelling (§ 246), assault with a firearm (§ 245, subd. (a)(2)), and participating in a criminal street gang (§ 186.22, subd. (a)) with associated firearm and gang enhancements. However, Judge James T. Warren entered a minute order stating that all counts were “dismissed in the interest of justice. (1385 PC).” After unsuccessfully seeking writ review in the superior court appellate division, the People filed a motion to reinstate the complaint under section 871.5. Defendant’s counsel opposed the motion on several grounds, including that jeopardy had attached because Judge Armstrong had dismissed the action on the basis of insufficiency of the evidence. Defendant’s counsel also argued that the prosecutor had acted overzealously in overcharging defendant with several attempted murder counts even after the court had held the evidence at the preliminary hearing was insufficient on those counts, and another judge had granted a section 995 motion as to several counts.
At the hearing on the motion, the court noted that defendant had been held in custody for approximately two and one-half years since his original arraignment. The trial court denied the motion, and this appeal ensued.
III. DISCUSSION
A. Case No. E047003
The trial court has broad discretion to dismiss charges in the furtherance of justice under section 1385 before, during, or after trial. (§ 1385, subd. (a); People v. Orin (1975) 13 Cal.3d 937, 945.) However, the statute requires the trial court to enter in the minutes its reasons for doing so. (§ 1385, subd. (a).) Courts have consistently held that the requirement of a statement of reasons is mandatory, and in the absence of such a statement, the order may not stand. (People v. Bonnetta (2009) 46 Cal.4th 143, 149.) It is not sufficient that such reasons may be gleaned from the reporter’s transcript. (Ibid.)
As one court has explained: “Section 1385 requires the reasons for dismissal be set forth in the minutes. Oral statements are not the same as court minutes. Minutes and oral pronouncements of the court, even if they are reduced to writing by the reporter, are different things. If the reasons are not set forth in the minutes, the order dismissing may not be considered a dismissal under section 1385. If valid reasons are expressed in the reporter’s transcript but do not appear in the minutes, the mandatory requirements have not been met. [Citation.] Moreover, a specification of reasons is insufficient when it is couched in conclusory language and fails to set out the factual basis for the conclusions reached. [Citation.] Failure to state the reasons in the minutes renders a dismissal under section 1385 invalid. [Citation.]” (People v. Superior Court (Flores) (1989) 214 Cal.App.3d 127, 135-136.)
Both parties request this court to examine the merits of the underlying reasons for the dismissal, although the parties disagree both as to what those reasons were and whether they were a valid basis for dismissal. Defendant asserts the dismissal was based on legal insufficiency of the evidence. The People contend the dismissal was based on invalid considerations, such as the trial court’s view that a third trial would unduly burden judicial resources.
However, in Bonnetta, our Supreme Court held that when an order of dismissal is invalid, “the matter must be remanded at least for the purpose of allowing the trial court to correct the defect by setting forth its reasons in a written order entered upon the minutes. Alternatively, on remand the trial court may, but need not, revisit its earlier decision, as on reflection it might determine its reasoning was flawed or incomplete. Judicial economy is furthered by allowing the trial court to correct what, upon reconsideration and reflection, it perceives to have been an unwarranted dismissal, or to consider if a dismissal should be ordered for some new or different reason.” (People v. Bonnetta, supra, 46 Cal.4th at p. 153.) We will therefore follow this directive and remand the matter for the trial court to state in the minutes the reasons for dismissal or to reconsider its earlier decision.
Our decision to reverse and remand also renders moot defendant’s contention that because there have been two dismissals under section 1385 (the dismissal at issue in case No. E043007 and the dismissal at issue in case No. E047680), the People were prohibited from refiling the charges under section 1387, subdivision (a). A mistrial following a jury deadlock extinguishes jeopardy that had previously attached. (People v. Smith (1983) 33 Cal.3d 596, 600-601.) Thus, the People may refile charges after a mistrial is declared and charges are dismissed unless the trial court bases the dismissal on the legal insufficiency of the evidence. (People v. Hatch (2000) 22 Cal.4th 260, 267-268.)
B. Case No. E047680
Judge Webster denied the prosecutor’s motion to reinstate the complaint under section 871.5. In reviewing the denial of such a motion, we disregard the trial court’s ruling and directly examine the magistrate’s decision to dismiss. (People v. Plumlee (2008) 166 Cal.App.4th 935, 938-939; People v. Love (2005) 132 Cal.App.4th 276, 282.) Here, the magistrate stated that jeopardy had attached when Judge Armstrong dismissed the complaint in case No. RIF130514. However, the minute order states only that all counts were “dismissed in the interest of justice. (1385 PC).” For the same reasons as with Judge Armstrong’s order, that dismissal order was invalid. However, because in case No. E047003 we conclude that dismissal must be reversed on the basis that the trial court failed to state its reasons in the minute order pursuant to section 1385, we conclude the appeal in case No. E047680 is moot.
IV. DISPOSITION
In case No. E047003, the judgment is reversed and the matter is remanded for the trial court to set forth in a written order entered in the minutes its reasons for the dismissal. Alternatively, the trial court may, but need not, revisit its earlier decision. In case No. E047680, the appeal is dismissed as moot.
We concur: MCKINSTER J., MILLER J.