People v. Cowan

Opinion

HANING, J.

Defendant/appellant Paul Albert Cowan appeals his conviction by jury trial for lewd arid lascivious acts with a child under age 14 (Pen. Code, § 288, subd. (a)).

1

The trial court found allegations of bodily injury (§ 1203.066, subd. (a)(2)) and substantial sexual conduct with a victim under the age of 11 (§ 1203.066, subd. (a)(8)) to be true. He contends, inter alia, that the trial court was without jurisdiction to reinstate the section 1203.066 allegations after having previously dismissed them on its own motion under section 1385.

We affirm, concluding that the trial court correctly determined that its original dismissal of the section 1203.066 allegations was an act in excess of its jurisdiction, and that the reinstatement was proper.

[758]

Facts

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I.

During jury selection appellant waived jury trial on the section 1203.066, subdivisions (a)(2) and (a)(8), allegations. After the jury reached its verdict and before making any findings on the allegations, the trial court granted appellant’s request to strike the allegations on its own motion under section 1385. The order was entered November 26, 1985, the matter was referred to the probation department, and sentencing was set for December 23, 1985. On December 16, 1985, the People filed a “Motion to Reconsider and to Vacate Order Dismissing 1203.066 Allegations.” It was the People’s position that such action was prohibited by the language of section 1203.066 itself as well as by

People

v.

Tanner

(1979) 24 Cal.3d 514 [156 Cal.Rptr. 450, 596 P.2d 328] and “subsequent related cases.” This motion was granted on December 23, 1985, and the order was vacated. On December 27, 1985, the trial court found the allegations true. Appellant contends the trial court had discretion under section 1385 to strike the allegations before they were found true, and lacked jurisdiction to reinstate them.