
    Appellate Department, Superior Court, Los Angeles
    [Crim. A. No. 16219.
    July 26, 1978.]
    THE PEOPLE, Plaintiff and Appellant, v. GREGORY ALLAN FRANKLIN et al., Defendants and Respondents.
    
      Counsel
    Burt Pines, City Attorney, Laurie Harris and Florence-Marie Guzman, Deputy City Attorneys, for Plaintiff and Appellant.
    Henry M. di Suvero and Bobby R. Black for Defendants and Respondents.
   Opinion

COLE, P. J.

The People appeal from an order dismissing two counts of battery (counts I and II, respectively) filed against respondents Franklin and Kendrick. These counts were filed on April 27, 1977, together with a third count charging Franklin with violation of Penal Code section 653k (possession of switchblade knife). Thereafter, the pleadings were additionally amended as follows: On October 12, 1977, on motion of the People, counts IV and V were added, charging Franklin and Kendrick, respectively, with violating Penal Code section 626.10 (possession of a knife on school premises). On October 31, 1977, Kendrick’s motion to dismiss count V was granted.

Juiy selection then commenced for trial on the four remaining counts, and continued until the noon hour. At 1:30 p.m. the prosecutor informed the court that the weapon which formed the basis for counts III and IV against Franklin had been inadvertently destroyed by the police department. All parties then stipulated to a mistrial and the jury was discharged. Counts III and IV were dismissed. The defendants then moved to dismiss the two counts which remained (counts I and II, charging battery). Hearing on this motion was continued to November 14, 1977, at which time the court granted the motion to dismiss counts I and II.

The minutes of November 14, 1977, read only as follows: “Hearing on defendant’s 1538.5 PC motion held. Court finds further prosecution after selection of jury and the adding of additional counts which were subsequently dismissed either on motion of City Attorney or by City Attorney being unable to proceed. In the interest of justice requires that no further prosecution be had. Matter is dismissed under 1385 Penal Code.”

This recitation does not express a legal reason why the remaining battery counts should have been dismissed. In particular this minute order does not reflect a consideration of society’s legitimate interest in “ ‘the fair prosecution of crimes properly alleged.’ ” (People v. Orin (1975) 13 Cal.3d 937, 947 [120 Cal.Rptr. 65, 533 P.2d 193].) It was an abuse of discretion, for the trial court to dismiss on the grounds stated in the minutes.

We are aware that the trial court recited other reasons for ordering dismissal. This recitation appears in the reporter’s transcript but not in the minutes. We do not decide whether the other reasons are sufficient to justify dismissal. Penal Code section 1385 flatly states “the reasons of the dismissal must be set forth in an order entered upon the minutes.” (Italics supplied.) In recognition of this statutory command it has been held numerous times “that this provision is mandatory and not merely directory. Recently in People v. Superior Court (Howard) (1968) 69 Cal.2d 491, 502-503 [72 Cal.Rptr. 330, 446 P.2d 138], while recognizing the broad right of a trial judge to dismiss in furtherance of justice, we adverted to the requirement that he ‘must state his reasons in the minutes’ and took pains to point out that ‘[i]f the reasons are not set forth in the minutes, the order dismissing may not be considered a dismissal under section 1385. [Citations.]’ (Id., at p. 503, fn. 7.)

“Thus, it has been said: ‘The statement of reasons is not merely directory, and neither trial nor appellate courts have authority to disregard the requirement. It is not enough that on review the reporter’s transcript may show the trial court’s motivation; the minutes must reflect the reason “so that all may know why this great power was exercised.” ’ (People v. Beasley, supra, 5 Cal.App.3d 617, 637 [85 Cal.Rptr. 501].). . .” (People v. Orin, supra, 13 Cal.3d at p. 944.)

For this reason we reverse the order dismissing counts I and II.

Ibáñez, J., concurred.

PACHT, J., Concurring.

I am compelled by my oath to concur in the result. This court seems bound by the cases cited in the principal opinion. The result however, demonstrates dramatically the exaltation of form over substance and the concommittant reaching of an unjust end.

People v. Orin (1975) 13 Cal.3d 937, 944 [120 Cal.Rptr. 65, 533 P.2d 193] tells us, in effect, the minutes and only the minutes control “so that all may know why this great power was exercised.” As Orin and the cases it cites point out, it is a socially .desirable goal that “all may know why this great power was exercised.” But the facts and posture of this case demonstrate the danger of procedural rigidity. The “minutes” as set forth in the principal opinion are ungrammatical and virtually unintelligible. Should the defendant be forced to trial because the clerk who wrote the minutes was harried or inept? Here there is a record, a trustworthy and reliable record, of the trial judge’s reasons for dismissing the action under section 1385 of the Penal Code. That record is the reporter’s transcript of the proceedings of November 14, 1977.

“The Court: The Court finds that the interest of justice requires there be no further prosecution in this matter. The matter is dismissed under 1385 of the Penal Code. Further, the Court adds editorially that it appears that the filings were made in an attempt to protect some misconduct on the part of the People’s witnesses.

"‘[The Deputy]: Your Honor, could I ask what the basis for the Court’s ruling is?

“The Court: I have ruled. ... I have told you what the basis is.

“I’ve been a prosecutor long enough myself to know a case of over filing when I see it.

“Next time you decide to harass somebody, you do it a little more subtly.

“[The Deputy]: I would indicate there was no harassment in this case.

“The Court: I wouldn’t expect you to admit it. . . but I will look for it next time.” That record is vivid and fairly pulsates with the fervor of an experienced trial judge (himself a former prosecutor) who gave his reasons for dismissal in clear terms, on the record in open court at a public hearing. It should be noted that the minutes do reveal the presence and name of the court reporter.

We do not ignore the language of People v. Orin (supra) which holds that the transcript alone will not suffice. But should Orin prevail in a case such as this? If anyone not present when the trial judge dismissed this case wants to know “why this great power was exercised” that person need only consult the minutes and thereafter the court reporter. Is the possible inconvenience to an interested citizen in learning the judge’s reasoning to counterbalance the defendant’s right to be free of a prosecution on charges which in the mind and language of the trial judge were at best dubious? Is this an appropriate balancing of the People’s or society’s rights against those of a defendant?

The result of the decision herein requires a defendant to face trial either because a ministerial official’s records are sloppy or because the trial judge neglected to oversee his busy clerk and correct the minutes. In my opinion this case cries out for a review of how Penal Code section 1385 should be interpreted. 
      
      As a trial judge who has served in a busy municipal court I have been witness to and probably party to hurried record keeping occasioned by crowded calendars and the exigencies of a court of limited jurisdiction.
     