Arnold v. Williams

California Court of Appeal Nov 8, 1963 No. Civ. 7356Published

Before: Griffin

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Holding. The court held that the dismissal of a felony complaint under Penal Code section 1385 and the subsequent rearrest of the defendant on a new complaint for the same offense does not violate the defendant's right to due process.

Issues

Whether the dismissal of a felony complaint and subsequent rearrest of the defendant violates procedural and substantive due process.
Whether a dismissal under Penal Code section 1385 bars further prosecution for the same felony offense.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The dismissal of the complaint and rearrest of the defendant under the circumstances shown by the record before the municipal court, made a part of the petition by reference, are not violative of defendant’s right to procedural and substantive due process.”

“Penal Code, section 1387, provides in part that an order for the dismissal of an action is not a bar to any other prosecution for the same offense if that offense is a felony.”

“Thus, it appears that the dismissal of the complaint against petitioner, with his subsequent rearrest, is expressly authorized by statute.”

GRIFFIN, P. J.

Petitioiaer-appellant Danny Arnold and one Joseph M. Valdez were charged jointly in two counts in the municipal court with violation of Penal Code, section 470 (forgery). The preliminary hearing was set for January 3, 1963. At this hearing, the People were unable to proceed. The transcript of the proceedings in the municipal court shows the presence of defendant Arnold, his attorney and the deputy district attorney. The preliminary examination was called for hearing and all parties said they were ready. The deputy district attorney then announced that an officer of a bank was on call as a witness and should be there momentarily; that he had just telephoned him. Some conversation took place between counsel and the court off the record. The deputy district attorney then announced that he would have to continue the cause because he did not have the “correct” witness there. A conversation was had at the bench with the court and off the record. The deputy district attorney then stated:

“There will be no testimony taken in this case, your Honor. Counsel apparently wants some time to talk to his client. There will be a motion for a continuance. It may be objected to, I don’t know. ...” Counsel for defendant then said: “... we want to determine if he might be able to make any sort of bail at all. We won’t object to a continuance if the man may be released OR. ... If I request a dismissal at this time, I am afraid the District Attorney will rearrest him at the courtroom door. I’d rather have him on his own recognizance on a continuance on this matter.” The court then said: “I can’t tell you what the District Attorney is going to

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do. Do you have a motion to continue?” to which the deputy district attorney replied: “We will move to continue.” Counsel for defendant then said: “Would the Court consider granting a release on his own recognizance?” . . . THE COURT: . . . “No, "bail will remain.” Counsel for defendant then said: “He is certainly a material witness in the matter in this case—” and the deputy district attorney replied: “As to both charges then, we will move to dismiss for insufficient evidence at this time. THE COURT: ‘ ‘ The complaint is dismissed.” Counsel for defendant said “Thank you” and then stated to the court: “Your Honor, the complaint is dismissed. Is he free to leave at this time ? ... THE COURT: Well, he has to be processed to get him cleared out of the custody of the Sheriff’s Office. . . . THE COURT: . . . The complaint is dismissed. That is all the Court has to do with it at this time.”

Arnold v. Williams

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GRIFFIN, P. J.

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