People v. Curtiss

Opinion

GUSTAFSON, J.

The defendant was charged by information with grand theft (in violation of subdivision 3, section 487 of the Penal Code) and with unlawfully taking or driving a vehicle without the consent of the owner (in violation of section 10851 of the Vehicle Code).

The evidence at the preliminary hearing discloses that the defendant rented an automobile for one week. The contract provided that the automobile would not be taken but of the state. Nearly three months after the automobile should have been returned, the defendant was located in Georgia with the car and extradited to California. No defense was presented at the preliminary hearing.

On arraignment in the superior court the following occurred:

“The Court: I notice that this is a car rental agency. Are we running another collection agency here?

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“Mr. Finnerty [Deputy District Attorney]: Pardon me?

“The Court: You might as well kill it. It will never see the light of day.

“If it’s a car rental deal, we are running a collection agency. “Mr. Finnerty: It is a car rental deal.

“The Court [to defense counsel]: . . . [M]ake a motion to dismiss the case and I will dismiss it.

“Mr. Cotton [defense counsel]: I make a motion to dismiss, your Honor.

“The Court: We are not running a collection agency here. The motion to dismiss is granted.”

The plaintiff appeals pursuant to subdivision 8 of section 1238 of the Penal Code from the order dismissing the case prior to trial.

The only issue raised on appeal is whether the trial court abused, its discretion under section 1385 of the Penal Code in dismissing the information. That section provides: “The court may, either of its own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. The reasons of the dismissal must be set forth in an order entered upon the minutes. No dismissal shall be made for any cause which would be ground of demurrer to the accusatory pleading.”