People v. James

Opinion

HASTINGS, J.

The People appeal (Pen. Code, § 1238, subd. (a)(8)) from an order of the trial court dismissing case number A343830 pur

[110]

suant to Penal Code section 1385, after the court sustained defendant’s plea of “once in jeopardy.”

On December 29, 1977, a jury returned a verdict in case number A333673, finding defendant guilty of count II (arson). The jury was unable to agree as to count I (murder of Marques Hall).

At the sentencing hearing on February 6, 1978, the court dismissed count I “in the interest of justice” pursuant to Penal Code section 1385, stating “that in the Court’s opinion it would be impossible to get a verdict of either guilty or not guilty because of the legal issues of specific intent, murder felony rule with a general intent crime, and the even split of the psychiatric testimony, the Court feels that it would be impossible to get a verdict in this case,...” It was also found that after hearing all the evidence in the trial the court “would have a reasonable doubt itself if he had to try the case without the jury on the issue of murder, Count I.”

The People later abandoned their appeal from that order of dismissal.

On June 6, 1978, indictment number A343830 charging defendant with the murder of Marques Hall was returned and filed. Defendant entered a plea of “once in jeopardy” based upon the prior dismissal of the same offense in case number A3 3 3673. After taking judicial notice of the file in case number A333673 and after reading the transcript of the prior proceedings, the court held that the plea of once in jeopardy was valid and dismissed the matter under Penal Code section 1385.

The People now argue that the constitutional prohibitions against double jeopardy are not applicable when a “1385 dismissal” follows a mistrial which has arisen in consequence of the jury’s inability to agree upon a verdict.

Defendant contends that the appeal does not lie because the order of dismissal is not an appealable order. The People concede that their appeal is limited to Penal Code section 1238, subdivision (a)(8) which authorizes the prosecution to appeal, “[a]n order or judgment dismissing or otherwise terminating the action before the defendant has been placed in jeopardy.” The People also concede that if the substantive contention is resolved against them, the appeal should be dismissed. However, if their substantive contention is valid, it necessarily follows that an appeal could lie. Accordingly, the jurisdictional question of the