People v. Ayala

California Court of Appeal Sep 26, 1973 No. Crim. 23128Published

Before: Fleming

AI Brief

AI-generated · verify before citing

Holding. The court held that the prosecution of a defendant for the sale of heroin is not barred by double jeopardy or the prohibition against multiple prosecutions where the initial charge was dismissed due to new evidence and the defendant is entitled to credit for time served.

Issues

Whether prosecution for sale of heroin subjects the defendant to double punishment or multiple prosecution under Penal Code section 654.
Whether the dismissal of a prior charge constitutes an acquittal barring subsequent prosecution.
Whether the prosecution's refiling of a felony charge after a magistrate reduced an initial charge to a misdemeanor violates the separation of powers.

Disposition. reversed

Quotations verified verbatim against the opinion

“Ayala will be entitled to credit on his sentence for a conviction for sale of heroin for time spent in custody on the charge of sale of a substance falsely represented to be a narcotic.”

“dismissal of that charge before trial on motion of the prosecution is not equivalent to an acquittal.”

“Neither the letter nor the spirit of Kellett has been violated here.”

Opinion

FLEMING, J.

The People appeal an order of the superior court which set aside an information charging David Ayala with sale of heroin.

On 30 May 1972 Ayala sold a powdery substance purporting to be heroin.to an undercover agent of the Pomona Police Department. A preliminary chemical analysis by a Pomona narcotics officer indicated the substance contained no opiates, and a felony complaint was filed against Ayala charging him with sale of a substance falsely represented to be a narcotic.

Following a preliminary hearing the magistrate ordered Ayala to stand trial but reduced the charge to a misdemeanor.

Subsequently, a sheriff’s laboratory criminalist analyzed the powdery substance and concluded that it did contain heroin. The municipal court granted the prose

[363]

cution’s motion to dismiss the charge for lack of proof, and Ayala was released after spending 64 days in custody on the charge. The prosecution filed a new felony complaint charging Ayala with sale of heroin

in the 30 May 1972 transaction with the informer, but the complaint was dismissed when the criminalist failed to appear at the preliminary hearing. The prosecution refiled the complaint charging sale of heroin, and after another preliminary hearing Ayala was ordered to stand trial on that felony charge. The superior court then granted Ayala’s motion to set aside the information.

The question is whether prosecution on the second information charging sale of heroin will subject Ayala to the threat of double punishment or to needless multiple prosecution.

Penal Code section 654 provides that an act which is made punishable in different ways by different criminal provisions may be punished under only one of those provisions. Ayala contends he is subject to double punishment in this case. He reasons: the 64 days he spent in custody on the charge of sale of a substance falsely represented to be a narcotic, a charge the evidence does not support, cannot be credited on his sentence on a conviction for sale of heroin; if he had been properly charged with sale of heroin in the first complaint he would be entitled to credit for thé 64 days on his sentence should he be convicted on that charge; he therefore has already been irremediably punished on a charge of sale of substance falsely represented to be a narcotic, and cannot be punished under another criminal provision for the same sale of a powdery substance.

People v. Ayala

AI Brief

FLEMING, J.

More from California Court of Appeal

Related research

AI Brief