People v. MacK

Opinion

KINGSLEY, J.

This is an appeal by the People pursuant to Penal Code section 1238, subdivision (a)(8), from an order of the superior court dismissing a criminal action pursuant to section 1385 of the Penal Code.

A criminal information was filed in case No. A435933 charging defendant with a violation of Penal Code section 288 (committing lewd acts on the body of a child). An amended information charged defendant with two prior felony convictions of subdivision 1 of section 314 (case No. A-274-194 and case No. A-283916). The court appointed psychiatrists to examine defendant.

The trial judge noted that defendant was currently on probation in superior court case No. A-283916 for a felony conviction of violation of subdivision' 1 of section 314. Defendant admitted the probation violation and the court found him to be in violation of probation in case No. A-283916. Defendant admitted the offense in the instant information (A-435933).

In October 1974, the court considered the psychiatrists’ reports, the probation report in case No. A-283916 filed on August 3, 1972, and the facts of the instant case and, based on that information, found defendant to be a mentally disordered sex offender. Defendant was committed to the California Department of Health.

The court, over the People’s objection, dismissed superior court case No. A-435933, the instant case. The court said orally: “Pursuant to People versus Superior Court, 20 Cal.App.3d 684, I shall dismiss A435933 because of congestion of calendar and because the court

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believes that no other disposition would occur than as at present should the defendant be convicted in said cause.”

The minute order of October 8, 1974, stated “Matter ordered dismissed due to congested calendar—see A-283916—over objection of D.A.” Thus, the minute order of October 8, 1974, reflected only that the matter was dismissed due to congestion of the calendar and did not reflect the court’s additional stated reason that “no other disposition would occur than as at present should the defendant be convicted in said cause.”