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iLaw Dictionary
California
Law Dictionary
Statutory Construction
(People v. Chacon)

Statutory Construction
(People v. Chacon)

DISCUSSION

I

            The threshold question is whether the dismissal order is appealable.  If not, there is nothing further to decide.  The issue is one of statutory construction.  “The People have no right of appeal except as provided by statute.  (People v. Smith (1983) 33 Cal.3d 596, 600 [189 Cal.Rptr. 862, 659 P.2d 1152].)”  (People v. Douglas (1999) 20 Cal.4th 85, 89.)  Section 1238 governs a People’s appeal from orders or judgments of the superior courts.  The People invoke subdivision (a)(8) which permits appellate review of “An order or judgment dismissing or otherwise terminating all or any portion of the action including such an order or judgment after a verdict or finding of guilty or an order or judgment entered before the defendant has been placed in jeopardy or where the defendant has waived jeopardy.”  (Italics added.)

            “In construing any statute, ‘[w]ell-established rules of statutory construction require us to ascertain the intent of the enacting legislative body so that we may adopt the construction that best effectuates the purpose of the law.’  (Hassan v. Mercy American River Hospital (2003) 31 Cal.4th 709, 715 . . . .)  We begin by examining the words themselves ‘because the statutory language is generally the most reliable indicator of legislative intent.’  (Ibid.; People v. Jefferson (1999) 21 Cal.4th 86, 94 . . . .)  ‘The words of the statute should be given their ordinary and usual meaning and should be construed in their statutory context.’  (Hassan, supra, at p. 715; see also People v. Robles (2000) 23 Cal.4th 1106, 1111 . . . .)  If the statutory language is unambiguous, ‘we presume the Legislature meant what it said, and the plain meaning of the statute governs.’  (People v. Robles, supra, at p. 1111; People v. Castenada (2000) 23 Cal.4th 743, 747 . . . .)”  (People v. Toney (2004) 32 Cal.4th 228, 232.)

            The plain language of section 1238, subdivision (a)(8) permits a People’s appeal from the dismissal of an entire prosecution before jeopardy attaches, the circumstance presented here.  We find no reason that would bar application of this statute according to its terms.  But even if there was some ambiguity in the statutory language, we would reach the same result in this case.  Our conclusion that the appeal lies is supported by the legislative history.  In 1998, section 1238, subdivision (a)(8) was amended to add language expressly allowing an appeal by the People from a dismissal after a verdict under specified conditions, a circumstance not presented here.  But the legislative history is instructive on the Legislature’s intent concerning the breadth of subdivision (a)(8):  “A legislative committee report states that the amendment was enacted to permit the prosecution to appeal in all situations ‘except where the appeal would violate double jeopardy,’ thereby bringing the scope of appeals by the People into conformity with federal law.  (Assem. Com. on Public Safety, Rep. on Sen. Bill No. 1850 (1997-1998 Reg. Sess.) as amended May 12, 1998.)”  (People v. Salgado (2001) 88 Cal.App.4th 5, 12, italics added.)  Jeopardy attaches when the jury is empanelled and sworn.  (See People v. Hernandez (2003) 30 Cal.4th 1, 8.)  The prosecution’s motion to dismiss the action was granted in a pretrial hearing before jury selection commenced and jeopardy therefore had not attached when the case was dismissed.

            There is, however, one problem with the plain reading approach to section 1238, subdivision (a)(8).  Where the prosecutor announces that it cannot proceed, this leaves the trial court with no choice but to dismiss the action.  The question presented is whether the prosecution can proceed with an appeal after it affirmatively has chosen not to proceed with trial when the only possible outcome is for the trial court to dismiss the action.

            Several cases have recognized the right of the People to appeal from an order of dismissal following its announcement of inability to proceed where that decision is based on an adverse evidentiary ruling by the trial court.  (People v. Yarbrough (1991) 227 Cal.App.3d 1650, 1654 [suppression of in-court identification by victim]; People v. Dewberry (1974) 40 Cal.App.3d 175, 181-185 [same]; People v. Angeles (1985) 172 Cal.App.3d 1203, 1209-1211 [suppression of custodial statements]; People v. Mills (1985) 164 Cal.App.3d 652, 655 [suppression of results of Breathalyzer test].)  But each of these cases involves a ruling excluding prosecution evidence.  This case is different.  Here, the ruling was to allow evidence by the defendant and to recognize the defense theory of entrapment by estoppel.

            Of course, if the case against Chacon goes forward to trial, the entrapment by estoppel defense is allowed, and she is acquitted, the People could not appeal because jeopardy would have attached.  This places the People in an impossible position because they could not have obtained appellate review to determine whether the defense of entrapment by estoppel is cognizable.  (People v. Superior Court (1968) 69 Cal.2d 491, 499 [Review of an alleged error may be sought by a petition for writ of mandate only when a trial court has acted in excess of its jurisdiction and the need for such review outweighs the risk of harassment of the accused.  Mandate is not available to the prosecution for review of “‘ordinary judicial error.’  [Citation.]”  (People v. Superior Court (Stanley) (1979) 24 Cal.3d 622, 625-626)].)  We conclude that in these circumstances, appellate review of the order of dismissal is appropriate. People v. Chacon (April 14, 2004)-CA2/4-B164649 (entrapment by estoppel.) 

Apr 14 2004

B164649 [PDF] [DOC]

P. v. Chacon 4/14/04 CA2/4