People v. Hudson

Opinion

ELIA, J.

The issue on appeal is whether the trial court correctly applied a presumption of prosecutorial vindictiveness where felony charges were filed against respondent, Barbara Hudson, following her withdrawal of a guilty plea to misdemeanor charges. We conclude that it did not, and reverse the trial court’s order dismissing the charges against respondent.

Facts

On April 27, 1987, a complaint was filed in municipal court charging respondent with misdemeanor petit theft with a prior felony (Pen. Code, §§ 666/484). On May 8, 1987, a second complaint based on a separate incident was filed by a different deputy district attorney charging respondent with misdemeanor trespass and misdemeanor theft (Pen. Code, §§ 602 subd. (/) and 484). The complaints were consolidated, and on May 15, 1987, respondent was arraigned in municipal court and pled guilty to the petit theft and theft charges, and a motion to dismiss the trespass charge was taken under submission.

On June 26, 1987, at the sentencing hearing, respondent asserted her innocence, and the court granted her motion to withdraw her guilty pleas. The cases were then set for trial.

On July 9, 1987, amended complaints were filed in municipal court charging respondent with two felonies in each case (Pen. Code, § 459

[786]

(burglary) and Pen. Code, §§ 666/484 (misdemeanor petit theft with a prior felony)). On July 10, 1987, appellant was arraigned on the amended complaints and entered a not guilty plea. She failed to appear at a preliminary hearing scheduled for July 29. She was arrested in November 1987, and appeared for preliminary hearings on November 19 and November 25. Informations were filed in superior court on December 9 and December 13. Pretrial in both cases was held on December 18, and trial was set for January 19, 1988. On January 11, 1988, respondent filed a motion to dismiss all the charges on the grounds of prosecutorial vindictiveness, arguing that the prosecution had charged her with more serious offenses in retaliation for the exercise of her constitutional right to a jury trial.

At the hearing on January 15, 1988, Deputy District Attorney Northcote testified that he filed the original petit theft charge on the basis of language in the police report which was equivocal on the question of whether respondent’s entry into the victim’s home had been consensual. Deputy District Attorney Osborne-Anderson then testified that she had been assigned the cases prior to May 15, 1987, when she accepted respondent’s guilty pleas. After this, the victim of the petit theft charge had contacted her, and had made it clear that respondent’s entry into her home had been nonconsensual. Osborne-Anderson next reviewed the files after the sentencing hearing, when she learned that respondent had withdrawn her guilty pleas. She then discussed the case with her supervisor, telling him that the two cases had been filed by two different deputy district attorneys, and suggesting that both cases involved felonies rather than misdemeanors. Based on conversations with the two charging deputies, both of whom related that they had not had all the information necessary to file felony charges, Osborne-Anderson then moved to amend the complaints. There was no objection from respondent. Osborne-Anderson did not know that she had had the option of moving to set aside the plea and of filing new charges.