P. v. Keller
Filed 10/14/09 P. v. Keller CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, Plaintiff and Appellant, v. ROBERT CHARLES KELLER, Defendant and Respondent. | E047367 (Super.Ct.No. RIF133995) OPINION |
APPEAL from the Superior Court of Riverside County. Byron K. McMillan, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.) Reversed with directions.
Rod Pacheco, District Attorney, and Kelli Catlett, Deputy District Attorney, for Plaintiff and Appellant.
Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant and Respondent.
The People appeal a dismissal by the trial court in the interests of justice (Pen. Code, 1385, subd. (a)) following a jury mistrial. We reverse with directions.
BACKGROUND
Defendant Robert Charles Keller was charged with committing a lewd act upon a child under the age of 14 years. (Pen. Code, 288, subd. (a).)
Defendants case was tried to a jury. After the jury deliberated, they announced they were deadlocked and that further deliberations would not be fruitful. The trial court declared a mistrial. The division was 11 to one in favor of a not guilty verdict. One of the jurors indicated difficulty with the intent element; while a second wondered why persons that should have been witnesses were left out. The trial court stated it would dismiss the case, but would consult with counsel first. After a recess following the release of the jurors, the trial court stated, Its the Courts opinion that the case should be dismissed, and over the strenuous objections of PlaintiffPeoples Counsel, the District Attorney, the Court now dismisses the action in the interest of justice.
The minute order stated: Jury retires at 9:00 to resume deliberations. [] (2:41) The Court received Juror Question #1 from Juror #6 (foreperson). [] (3:21) All parties present. [] (3:22) The Jury is brought into the courtroom. The Court questions Juror #6 (foreperson) and each of the Jurors as to if further deliberations would result in a unanimous decision. [] The Court declares a mistrial. [] In-chambers conference held off the record. [] Over the District Attorneys strenuous objection the Court dismisses Count 1. [] Count(s) 1 dismissed in the interest of justice. (1385 PC) [] Current Bail Bond Exonerated. [] Defendant Released.
DISCUSSION
The People contend the dismissal order is invalid because the reasons for the dismissal were not stated in the minutes. Defendant contends that the minute order refers to the mistrial as the trial courts reason for dismissing the case. We agree with the People.
Penal Code section 1385, subdivision (a), provides that [t]he judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. The reasons for the dismissal must be set forth in an order entered upon the minutes. [A] dismissal without a written statement of reasons is invalid and of no effect regardless of the reviewing courts belief that the reasons for the dismissal can be discerned from other portions of the record. (People v. Bonnetta (2009) 46 Cal.4th 143, 149.) If a trial courts order of dismissal is ineffective, the matter must be remanded at least for the purpose of allowing the trial court to correct the defect by setting forth its reasons in a written order entered upon the minutes. Alternatively, on remand the trial court may, but need not, revisit its earlier decision, as on reflection it might determine its reasoning was flawed or incomplete. Judicial economy is furthered by allowing the trial court to correct what, upon reconsideration and reflection, it perceives to have been an unwarranted dismissal, or to consider if a dismissal should be ordered for some new or different reason. In such cases, the court must also have the power to take action such as reconvening the sentencing hearing or allowing a defendant to withdraw a plea entered on the understanding a count or an enhancement would be dismissed. (Id., at p. 153.)
While it may be inferred that the mistrial is the reason from the trial courts minute order, the minute order does not explicitly state the trial courts reason or reasons for the dismissal. Accordingly, the dismissal is invalid, but the trial court may revisit the issue or state its reason or reasons on remand.
DISPOSITION
The judgment is reversed. The trial court is directed to set forth in a written minute order its reasons for the dismissal. Alternatively, the trial court may, but need not, revisit its earlier decision, and may correct what it might perceive to have been an unwarranted dismissal, or may consider if a dismissal should be ordered for some new or different reason.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
GAUT
J.
KING
J.
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