A complaint dismissed for prosecutorial vindictiveness cannot be refiled

People v. Sanchez, 2019 WL 5304531 (Cal.App. 1 Dist.) (Cal.App. 1 Dist., 2019)

Angel Sanchez (Sanchez) was charged by re-filed complaint with robbery, assault with a deadly weapon on a transit passenger, and receiving stolen property. The  magistrate granted Sanchez’s  motion to dismiss the complaint for prosecutorial vindictiveness,  The Superior Court, San Francisco County, No. MCN17010380, Garrett L. Wong, J., denied reinstatement of complaint. The People appealed.

Jeff Adachi, Public Defender, Matt Gonzalez, Chief Attorney, Dorothy Bischoff, Deputy Public Defender, represented Sanchez on Appeal.The Court of Appeal held that the complaint could not be reinstated after its dismissal by magistrate on due process ground.

Dismissal of January 2016 complaint.

In January 2016, Sanchez was charged with robbery (Pen. Code, § 211) and assault with a deadly weapon on a transit passenger  (§ 245.2) He was also charged with  receiving stolen property (§ 496, subd. (a). The People dismissed the complaint due to the victim being unavailable.

July 2016 robbery charges

In July 2016, Sanchez was charged with another robbery (§ 211), assault with force likely to cause great bodily injury (§ 245, subd. (a)(4)), and vandalism (§ 594, subd. (b)(1)) for acts against a different victim. The prosecutor attempted to locate R.D. from the January crime to testify as a witness under Evidence Code section 1101, subdivision (b) (uncharged acts).  R.D. was  subpoenaed to testify at trial. The jury found Sanchez guilty of misdemeanor assault (§ 240) and felony vandalism (§ 594, subd. (b)(1)). The jury hung on the robbery count, and the trial court deferred sentencing until the prosecution decided whether it would retry the charge.

Prosecution refiles the dismissed July 2016 robbery charges

In July 2017, the prosecution re-filed the previously dismissed  2016 case against Sanchez. The prosecution informed the trial court that it would dismiss the robbery count but proceed on the re-filed January 2016 case. Sanchez was sentenced for the assault and felony vandalism.

In August 2017, before the preliminary hearing, Sanchez moved to dismiss the re-filed 2016  complaint for vindictive prosecution in violation of his constitutional right to due process. The magistrate judge found a presumption of vindictiveness and granted the motion. He provided  the reasons for dismissal in a 19-page opinion which referenced no statutory grounds for the court’s minutes stated the case was dismissed “PURSUANT TO PENAL CODE 1385 FOR REASONS STATED ON THE RECORD.”

The People moved to reinstate the re-filed complaint pursuant to section 871.5. The superior court denied the motion. The People appealed and argued that the superior court erred when it concluded the magistrate’s dismissal could not be reinstated under section 871.5.

Penal Code Section 871.5 allows for reinstatement of a complaint dismissed on statutory grounds

“When an action is dismissed by a magistrate pursuant to Section 859b, 861, 871, 1008, 1381, 1381.5, 1385, 1387, or 1389 of this code or Section 41403 of the Vehicle Code, the prosecutor may make a motion in the superior court within 15 days to compel the magistrate to reinstate the complaint or a portion thereof.” (§ 871.5, subd. (a).)

The statute allows the prosecution to seek review of the magistrate’s dismissal in the superior court and request reinstatement of the charges “under the same terms and conditions as when the defendant last appeared before the magistrate.”

Dismissal here was not on constitutional not statutory grounds

The superior court denied the prosecution’s motion to reinstate the complaint because the dismissal was for vindictive prosecution and not based on any of the statutes enumerated in section 871.5. The superior court concluded the magistrate dismissed the complaint pursuant to Twiggs v. Superior Court (1983) 34 Cal.3d 360 (Twiggs) and In re Bower (1985) 38 Cal.3d 865 (Bower), neither of which reference the statutes enumerated in section 871.5.

The Court of Appeal ruled that since the magistrate dismissed the re-filed complaint against Sanchez on constitutional grounds not listed in section 871.5, the superior court did not err when it denied the motion to reinstate.

The plain language of 871.5 permits superior court review of dismissal orders by magistrates when a complaint has been dismissed pursuant to specifically enumerated statutory authority and does not apply when a complaint is dismissed on constitutional grounds.  Sanchez had moved for dismissal on constitutional grounds. The basis for his motion was stated as “state retaliation for Sanchez’s rejection of a plea bargain and his successful exercise of his right to a jury trial, violating Due Process (5th Amend. US Const; art 1, §§ 7, 15).”

Clerical error in minute order does not change the result here.

The minute order reflecting the magistrate’s dismissal states the case was dismissed “ ‘pursuant to Penal Code 1385 for reasons stated on the record.’ ” This does not change the result. Entering the order in the minutes is a purely clerical function. (People v. Mesa (1975) 14 Cal.3d 466, 471, 121).  Here, the magistrate’s decision in court  referred to the 19-page opinion, and neither the pronouncement or the opinion referred to section 1385. The lengthy written opinion signed by the magistrate clearly sets forth the grounds for the magistrate’s dismissal for constitutional reasons

The Court affirmed the dismissal.


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