Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. RIF130514, Robert W. Armstrong, Judge. (Retired judge of the L.A. Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
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
The People appeal from an order dismissing criminal charges against defendant Alanzo David Tenorio. The People contend the trial court abused its discretion by determining without a factual basis that the case did not justify further proceedings and dismissing the case without the opportunity for the trial prosecutor to be heard. In addition, the People argue that the trial court erroneously dismissed the matter for judicial convenience, failed to acknowledge that the jury was moving toward unanimous verdicts, and was unaware that one juror was refusing to deliberate. We find no error, and we affirm.
II. FACTS AND PROCEDURAL BACKGROUND
This matter is before us in a third appeal. No evidence of the underlying facts has been included in the records of this appeal or of the previous appeals. The procedural history of the earlier proceedings is taken from our opinion in the consolidated appeals, as follows:
We take judicial notice of the records of the previous consolidated appeals: Nos. E047003 and E047680. (People v. Tenorio (Nov. 24, 2009, E047003, E047680) [nonpub. opn.].)
“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.
“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.” (People v. Tenorio, supra, at pp. 3-7.)
This court held that the dismissal under Penal Code section 1385 was void because the trial court failed to state its reasons in the minute order. We remanded the matter “for the trial court to set forth in a written order... its reasons for the dismissal [or to] revisit its earlier decision.” (People v. Tenorio, supra, E047003, E047680, at p. 10)
All further statutory references are to the Penal Code unless otherwise noted.
Proceedings on Remand
On remand, the trial court conducted a hearing, following which it again dismissed the charges. The trial court stated its reasons, as follows: “That the Court heard this case; it was tried very strenuously by both sides; the jury asked for readback of testimony and deliberated for a considerable period of time. The jury twice informed the Court that they were deadlocked, and, finally:
“After the last time, the Court found that the jury was deadlocked at 10 to 2 where they moved from a 9 to 3. The Court made a careful inquiry as to whether any of the jurors felt there was a reasonable possibility of reaching a verdict, and the juror replied in the negative. Therefore, the Court dismissed the case. The Court declared a mistrial and sent the jury on its way.
“After the jury departed, there were further proceedings held before the Court, and the Court dismissed the case and discharged the defendant over the People’s objection. At the time that the Court dismissed the case, the Court did not specify reasons for doing so. And as the remittitur indicated, the Court should have done so. The Court dismissed the case pursuant to [section] 1385, which gives the Court the authority on its own motion to dismiss a criminal case if they feel that the evidence is insufficient to justify further proceedings.
“It’s my opinion after hearing the evidence in this case that the evidence was insufficient to justify further proceedings, and on that basis the Court felt that the evidence was insufficient that the matter should be retried and the order for dismissal was made. And the Court reiterates that order for dismissal at this time.”
The trial court’s minute order stated: “Matter was dismissed pursuant to 1385 PC due to insufficient evidence and matter should not be retried.”
The People again appealed.
Additional facts are set forth in the discussion of the issues.
III. DISCUSSION
Standard of Review
We apply an abuse of discretion standard to a review the trial court’s dismissal of a case under section 1385. (People v. Ortega (2000) 84 Cal.App.4th 659, 666.) An abuse of discretion is shown when the trial court’s decision was based on improper reasons or on an error of law or when the trial court’s factual findings are unsupported by evidence in the record. (People v. Cluff (2001) 87 Cal.App.4th 991, 998; People v. Draut (1999) 73 Cal.App.4th 577, 581.)
Absence of Deputy District Attorney Who Represented the People at Defendant’s Trial.
The People argue the trial court abused its discretion in dismissing the case against defendant because the prosecutor most familiar with the case was not present at the hearing.
Additional Background
On February 16, 2010, Deputy District Attorney Elizabeth Behnke, the prosecutor who had appeared for the People at the second trial, sent a letter to the trial court requesting that the matter be calendared for March 19, 2010, at 8:30 a.m. At that date and time, the trial court called the matter. Counsel for defendant stated Behnke had sent him a letter to be there on that date, but that he could not locate her. The trial court asked if Deputy District Attorney Peter Kim could stand in, and Kim agreed to do so without objecting or requesting a continuance.
Analysis
With exceptions not relevant to the circumstances before us, it is a fundamental rule of appellate procedure that error not asserted before the trial court is deemed forfeited. (See, e.g., People v. Garcia (2010) 185 Cal.App.4th 1203, 1214.) “This general waiver or forfeiture rule is ‘grounded on principles of waiver and estoppel, and is a matter of judicial economy and fairness to opposing parties [Citations.]’” (Ibid.)
Here, when Behnke did not appear at the date and time she had personally requested for the hearing, the People failed to request a continuance or to object that the proceedings were conducted in her absence, although she was the deputy district attorney most familiar with the previous proceedings. We therefore conclude the People have forfeited any challenge to the trial court’s conducting the hearing in Behnke’s absence. (People v. Garcia, supra, 185 Cal.App.4th at p. 1214.)
Adequacy of Reasons for Dismissal
The People argue that Judge Armstrong had no factual basis for concluding the evidence was insufficient, because he did not preside over the entirety of the second trial. Specifically, the People argue that, “[b]ased on the entirety of Judge Armstrong’s comments, the charges were dismissed for court convenience, [and] could not have been dismissed based on a finding of legally insufficient evidence....” In addition, the People argue the trial court failed to acknowledge that the jury was moving toward unanimous verdicts and was unaware that one juror was refusing to deliberate.
Additional Background
The record shows the jury for the second trial was sworn in on the morning of September 10, 2008. Four witnesses testified that day; however, the record on appeal does not include the substance of their testimonies. When trial resumed the next day, the parties immediately addressed whether the trial judge had a conflict of interest, and at 9:35 a.m., the trial court informed counsel he was recusing himself. Counsel stipulated to continue the case with the same jury, and Judge Armstrong substituted into the case as trial judge. Thereafter, the testimonies of 15 witnesses were heard. Judge Armstrong also heard closing arguments, instructed the jury, and responded to questions from the jury during deliberations.
The People erroneously assert that “the majority of the evidence and civilian witness testimony pertaining to the charges had been presented to an earlier judge before he declared a conflict.”
Dismissal Based on Insufficient Evidence
Section 1385, subdivision (b) permits a trial court “either of his or her own motion or upon application of the prosecuting attorney, and in furtherance of justice, [to] order an action to be dismissed. The reasons for the dismissal must be set forth in an order entered upon the minutes.”
In People v. Hatch (2000) 22 Cal.4th 260, the court held that the People may refile charges once after a mistrial is declared and charges are dismissed, unless the dismissal was on the basis that the evidence was insufficient as a matter of law. (Id.at pp. 267-277.) A dismissal will not be deemed to be based on legal insufficiency “unless the record clearly shows that the court applied the substantial evidence standard of review and concluded no reasonable trier of fact could find guilt beyond a reasonable doubt. [Citation.]” (People v. Davidson (2008) 159 Cal.App.4th 205, 212.)
Here, the trial court’s minute order stated, “Matter was dismissed pursuant to 1385 PC due to insufficient evidence and matter should not be retried.” That statement was an adequate expression of the trial court’s reasons for dismissal under section 1385. In People v. Salgado (2001) 88 Cal.App.4th 5, 10, the court held that the statement of reasons for dismissal was sufficient when the minute order stated “there was insufficient evidence to support a conviction, and the trial court repeatedly used the phrase ‘insufficient evidence’ during the hearings. [Citations.]” The court further observed that “the phrase ‘insufficient evidence’ is a term of art showing that the court found the evidence to be legally insufficient to support a conviction.” (Ibid.)
On appeal from an order of dismissal, “we must engage in precisely the same task as the trial court and determine, without reweighing the evidence, whether there was sufficient evidence to permit a rational jury to convict. [Citations.]” (People v. Salgado, supra, 88 Cal.App.4th at p. 15.) Here, however, the People failed to provide us with a transcript of the trial testimony. In the absence of such a record, we cannot assess the sufficiency of the evidence, and on a silent record, we presume the trial court performed its duty properly. (Evid. Code, § 664; People v. Cartwright (1995) 39 Cal.App.4th 1123, 1141.) We conclude the People have therefore failed to meet their burden of demonstrating error.
The People argue, however, that because Judge Armstrong did not hear much of the evidence from the earlier trial, it would have been impossible for him to have concluded the evidence was insufficient. The record shows that four witnesses testified before Judge Armstrong took over the trial, and 15 witnesses testified after he did so.
Our review is governed by a presumption that official duty was performed. (Evid. Code, § 664.) There is no showing on the record before us that Judge Armstrong failed to familiarize himself adequately with the entire record of the previous trial.
Argument that Matter Was Dismissed for Judicial Convenience
The People argue the trial court erroneously dismissed the matter for judicial convenience. The People note that, when the trial court dismissed the matter the first time, the trial court had stated that retrial would have been a waste of the court’s time and the supervising judge had stated there was to be no “third bite of the apple.” In addition, the current minute order stated, “Court notes that this matter has been tried three times all resulting in jury deadlock, ” although in fact the matter had been tried only twice before.
The record shows the trial court was well aware the matter had been tried only twice before. The trial court’s extraneous statement, even if erroneous, does not undermine the validity of the dismissal.
Similarly, the trial court’s remarks during the hearing when it dismissed the matter the first time are irrelevant. First, the trial court’s remarks could well have been inartful references to the insufficiency of the evidence to support a conviction. Second, the remarks were not included in the minute order, and under section 1385, we review the sufficiency of the written statement of reasons. We have concluded that statement was adequate.
Argument that Trial Court Failed to Consider Movement in Jury Voting and Nonparticipating Juror
The People argue that Judge Armstrong “completely failed to acknowledge that the jury was progressing toward unanimous verdicts based on the change in vote tallies... and he was completely unaware that there was actually a juror who was refusing to deliberate with the others....”
With respect to progress in the jury’s deliberations, the People again misrepresent the record. Judge Armstrong repeatedly and explicitly acknowledged there had been movement in the jury’s voting from a nine-to-three split to a ten-to-two split.
With respect to Judge Armstrong’s unawareness that a juror was refusing to deliberate, the record indicates the People never brought the issue to Judge Armstrong’s attention but raised it only before Judge Warren with respect to refiling the charges after the first dismissal. The People cannot now claim that Judge Armstrong’s ruling was in error on the basis of an issue of which he was unaware.
IV. DISPOSITION
The judgment is affirmed.
We concur: MCKINSTER J., MILLER J.