People v. Superior Court

Opinion

BROWN (Gerald), P. J.

The People petition for mandate after the superior court dismissed a prosecution “in the furtherance of justice” under Penal Code section 1385, asserting as grounds for the writ the dismissal was an abuse of discretion and in excess of the court’s statutory powers. We agree.

A jury found Rebecca Montano guilty of possessing dangerous drugs (Health & Saf. Code, § 11910). The circumstances under which the offense came to light leave no doubt of her guilt.

The police were called by Montano’s mother, who told them her daugh

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ter had taken some pills. When they arrived, Montano became very angry, cursed the officers and her mother and refused to cooperate in any way. The officers asked the mother to check her daughter’s pockets. She found three capsules and gave them to the officers. Montano was arrested. En route to the police station, she became unconscious- and was then taken to the county hospital.

Before the case came to trial, Montano spent 18 days in custody.

Two and one-half weeks after the trial, a hearing was held on probation and sentencing. The trial judge adjudicated the offense a misdemeanor, then made a lengthy statement, later incorporated into the minutes. He said: “. . . there is no question but what she was, in the eyes of the law as written, in violation of law, and she had committed a crime by having in her possession these items of medication, . . .”

The judge then stated his opinion: “. . . there is nothing in this record that indicates to me . . . the heavy processes of the law are necessary, and . . . since this grew out of a mother’s cry for help- for her daughter I do not think ... it is ... in the best interests of this family relationship, ... in which the law has a tremendous interest; . . . -justice and public policy . . . would be served if this Court were to dismiss this matter in furtherance of justice . . . .”

Since there is no danger of trial or retrial, the writ of mandate may properly issue to correct an abuse of discretion

(People