People v. Ingram

Opinion

ANDERSON, P. J. In September 1984 respondent, Horace Aaron Ingram, was charged with violating section 10851 of the Vehicle Code (auto theft). In October 1984, subsequent to the dismissal of the first complaint at the preliminary hearing, another complaint was. filed charging respondent with the same crime. It is the dismissal of this second complaint entered by the superior court on November 19, 1984, that we review on appeal.

The preliminary hearing on the second complaint was set for 2 p.m. on October 4, 1984. At 10 a.m. on that day the court heard a noticed motion [1163]by the district attorney for continuance of the preliminary hearing. The court denied the motion for failure to show good cause and dismissed the case. Whereupon the district attorney immediately requested that the court proceed with the preliminary hearing at 2 p.m. as scheduled. Without ever rescinding the verbal dismissal, the court granted the district attorney’s request and ordered respondent to appear again at 2 p.m. No order of dismissal was ever entered in the minutes of the court’s proceedings.

At the outset of the preliminary hearing defense counsel argued that the case should not proceed because it had suffered its second dismissal. The court denied the motion, allowed the district attorney to present testimony and ultimately held the appellant to answer the charge in superior court. Subsequently, defense counsel filed a Penal Code1 section 995 motion to set aside the information on the ground that the case had been dismissed twice. The superior court granted this motion because it found that the court which verbally dismissed the case never made an order to set aside the dismissal. The People have appealed the order setting aside the information contending that the court which heard the motion for continuance abused its discretion in dismissing the case.

Discussion

Section 1385 is the only statute upon which the court sitting at the 10 a.m. hearing on October 4, 1984, could have possibly based its verbal dismissal. Section 1385 provides in pertinent part that “[t]he judge or magistrate may, either of its own motion or upon the application of the prosecuting attorney, and in the 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. ...”