People v. S.M.

Filed 3/1/17
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,
Plaintiff and Appellant, A147596

v. (San Francisco City & County
S.M., Super. Ct. No. 223640)
Defendant and Respondent.

I.
INTRODUCTION
The People appeal from the trial court’s dismissal of three felony and three
misdemeanor criminal charges “in the furtherance of justice,” pursuant to Penal Code1
section 1385, all relating to acts by respondent S.M.2 allegedly arising out of the
submission of a single false insurance claim to his automobile insurer in the amount of
$360. After the case was pending for four years, the court dismissed it on December 17,
2015. We conclude that the trial court did not abuse its discretion in dismissing the case.
II.
THE TRIAL COURT DID NOT ABUSE ITS DISCRETION
IN DISMISSING THE COMPLAINT UNDER SECTION 1385

A. Procedural History
On October 19, 2011, the San Francisco District Attorney’s Office filed a criminal
complaint charging S.M. with the following crimes all relating to the filing of an alleged
1
All further statutory references are to the Penal Code unless otherwise indicated.
2
We use respondent’s first and last initials throughout the opinion pursuant to
California Rules of Court, rule 8.90(b)(10).

1
fraudulent and false insurance claim on or about March 21, 2011, to wit: Count 1—
presenting a false or fraudulent insurance claim (§ 550, subd. (a)(1)); Count 2—
conspiring to present a false and fraudulent claim for damages to a motor vehicle and/or
its contents (§ 550, subd. (a)(4)); Count 3—presenting a knowingly false and misleading
statement in support of an insurance claim (§ 550, subd. (b)(1)); Count 4—conspiring to
present a knowingly false and misleading statement in support of an insurance claim
(§ 550, subd. (b)(2)); Count 5—conspiring to conceal an event that affected a person’s
entitlement to, or the amount of, an insurance benefit (§ 550, subd. (b)(3)); Count 6—
offering as true in connection with an investigation, a writing known to be forged,
fraudulent, altered, or back-dated (§ 132); and Count 7—preparing a fraudulent and
backdated writing to be presented in connection with an investigation (§ 134).
As a result of numerous requests for continuances by both sides, no preliminary
hearing was held until February 2015. At the conclusion of the preliminary hearing, the
trial court issued a series of orders, including allowing the prosecution to amend and add
Count 8 alleging a violation of section 550, subdivision (a)(5); denying S.M.’s motion to
reduce all counts to misdemeanors pursuant to Proposition 47; granting the prosecution’s
motion to dismiss Counts 6 and 7; and reducing Counts 3, 4, and 5 to misdemeanors.3
An information was filed on February 18, 2015, charging S.M. with the three
remaining felony counts (violations of § 550, subds. (a)(1), (a)(4) & (a)(5)), and three
misdemeanor counts (violations of § 550, subds. (b)(1), (b)(2) & (b)(3)). S.M., who was
represented by new counsel, was arraigned and denied the charges on March 10, 2015.
Several more continuances were requested and granted,4 and at a final hearing on
December 17, 2015, over the prosecutor’s objections, the trial court granted its own

3
Although the court allowed the prosecution to add an amended Count 8, this
count was dismissed by the prosecution before the information was filed.
4
From March to December 2015, the trial court continued the case a total of seven
times. Except for the continuance resulting from a written motion by the defense in July,
the record does not reflect which, if either, party requested the continuances or the
reasons for granting them.

2
motion to dismiss all remaining counts in the interest of justice. This appeal immediately
followed that ruling.
B. Statement of Facts Germane to the Charges5
On March 21, 2011, S.M. attended a traffic court hearing at 850 Bryant Street, San
Francisco. At 2:45 p.m., S.M. made an in-person police report with the San Francisco
Police Department stating that he parked his car at 12:30 p.m. and returned at 1:30 p.m.
to discover that someone had broken his car window and stolen his laptop computer.
Later that same afternoon S.M. reported the break-in to his insurer, State Farm Insurance
Company, and was told that his existing policy did not cover the loss.
That same evening, approximately five hours after his car was broken into, S.M.
purchased comprehensive automobile insurance over the telephone with GEICO. When
asked by GEICO whether he had any vehicle vandalized or stolen, “all or part,” in the last
five years, S.M. answered “no.”
The next day, March 22, S.M. filed an online incident report with the San
Francisco Police Department stating that, earlier that same day, March 22, at 1:30 p.m.,
S.M. returned to his vehicle and discovered that someone had smashed his passenger side
window and stolen his computer.
On March 23, S.M. filed a claim of loss with his new insurer GEICO stating that
the vehicle break-in occurred on March 22, after the inception of his GEICO policy.
On March 29, S.M. met with a GEICO investigator and, again, represented that the
break-in occurred on March 22. S.M. then showed the investigator a copy of the online
police report he had filed which stated the same. He claimed damage to his car for the
broken window in the amount of $316.6 He could not claim the loss of his stolen
computer because his policy did not cover the loss of personal items.
Before any payment was made on the claim, GEICO discovered that the break-in
occurred on March 21, prior to the inception of the GEICO policy, and not on March 22,
5
The facts are taken from testimony presented at the preliminary hearing on
February 9-10, 2015.
6
A subsequent appraisal by GEICO of the window damage was $360.

3
as represented by S.M.. Had it known that the incident occurred on March 21 and not on
March 22, there would have been no coverage for the damage.
C. The Court Orders the Remaining Counts Dismissed Pursuant to
Section 1385
On December 17, 2015, the trial court dismissed the information. At the
commencement of that hearing, the court noted that it had already informed counsel that
it was “seriously considering exercising my discretion and dismissing this matter in the
interest of justice.”
In light of that prior notice, counsel for S.M. sent a two-page letter on
December 2, 2015 (December 2 Letter), to the court and counsel explaining those factors
relating to the case and to S.M. personally that warranted dismissal in the interest of
justice.7
The December 2 Letter began by outlining S.M.’s professional background,
pointing out that he earned a Master of Science degree in electronics and communication
engineering from Monmouth University and another Master of Science degree in physics
from Quaid-E-Azam University in Islamabad, Pakistan. His working career spanned
more than 20 years and included employment with Cisco, AT&T, and IBM. He was the
then-current CEO and chair of the board of BOLO Network, Inc., which provides
networking and storage security solutions to companies, including Internet service
providers. Counsel argued that given this background and the sophisticated nature of his
clients, “a fraud-based conviction would have a devastating effect on his ability to carry
on his work.”8
The December 2 Letter went on to state that appellant had no criminal record, and
that he was the father of two high school-aged children.

7
This letter was submitted to this court with a motion to augment the record on
appeal, which motion was granted by an order dated August 12, 2016.
8
While the focus of the December 2 Letter was the felony counts, counsel also
explained that S.M. was reluctant to consider pleading even to the misdemeanor counts
because of the “negative impact it would have on his professional life.”

4
 Looking at the nature of the alleged criminal misconduct, counsel pointed out that
even if the charges were proved, the amount claimed against GEICO was $360, a sum
that was never actually paid by GEICO.
The prosecutor submitted nothing in writing prior to the December 17 hearing, nor
were any objections made concerning counsel’s letter.
At the hearing, after counsel stated their appearances, the court began its
comments and colloquy with counsel:
“THE COURT: The last time we were here I had indicated to both sides that I was
seriously considering exercising my discretion and dismissing this matter in the interest
of justice.
“I did receive a letter from [defense counsel] on December 2nd, and I did have the
opportunity to go back and look at some of the authority regarding what would be an
appropriate exercise of my discretion under 1385.
“And I’m inclined after reviewing the totality of the circumstances being familiar
with the facts of this case intimately from when it started off in one of the preliminary
hearing courts. I am mindful of the fact that [S.M.] has had no criminal record other than
this, that this has been going on for four years now, he has not been in trouble.
“The purported loss in this matter, if he had been successful in submitting this
claim to Geico having been paid on was $360. I am also taking into account his age, his
background in terms of his professional impact it would have on him, and the fact that
there has been no actual loss. In my view charging him with these matters, some of
which are non-reducible, correct?
“[DEFENSE COUNSEL]: Correct.
“THE COURT: Is a miscarriage of justice and disproportionate to the type of
offense that he engaged in.
“So what the Court is going to do on its own motion and should be reflected in the
minutes, as it has to be under the law, is going to dismiss this matter 1385 in interest of
justice as to all six counts.
“[PROSECUTOR]: Your Honor, may I be heard?

5
 “THE COURT: You can absolutely be heard.
“I can tell you right now, if this is the District Attorney’s office’s idea of a wise
allocation of resources, that’s my reason for this. I am looking at this individually, not
for court convenience, not for court calendar, but it is a sense that this is an unjust
prosecution by the People that has subjected this person to a four-year process where, it’s
completely disproportionate to the conduct he may or may not have engaged in, but go
ahead.
“[PROSECUTOR]: Your Honor, there is, other than the Court’s power under
1385 of the Penal Code, defense has been unable to cite any authority for dismissal of
these charges.
“There was no 995 brought or anything like that on any of the charges. Simply
because there is no authority for dismissal of the charges short of the Court exercising it’s
[sic] discretion under 1385.
“Your Honor, this case has gone on for a number of years, but nonetheless, the
case has been going on simply because [S.M.], we were unable to get it to trial or
unwilling to accept responsibility for what he did in this case.
“So I think that this sends a message, he has basically gone now through four
attorneys, gone through preliminary examination. And, in essence, the Court is
dismissing this case after [S.M.] has basically really just drug [sic] this case out as long as
he could.
“That simply is, in my opinion, to say that you could win the battle of dragging a
case out and getting dismissed after a couple years or few years.
“THE COURT: That’s not my reason for dismissing it. The fact of the matter that
it has been aged is one matter I have taken into account, whether this defendant has
reengaged or engaged in some sort of fraudulent activities.
“The reason this case is so old is because the position taken that this man should
admit to a felony offense or an offense that’s going to essentially prevent him from
earning a living in his chosen profession. And he has been attempting to convince the
other side, you know, as to the unjustness or unfairness of that whole process.

6
 “The fact that it’s taken a couple lawyers to do that, you know, that’s his right.
“You’re right, the defense can invite the Court to consider exercising its
discretion, and that’s what’s occurring here. So I’m not going to change my mind.
“Matter dismissed under 1385.”
D. Discussion
Section 1385, subdivision (a) provides: “The judge or magistrate may, either on
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 shall
be stated orally on the record. The court shall also set forth the reasons in an order
entered upon the minutes if requested by either party or in any case in which the
proceedings are not being recorded electronically or reported by a court reporter. A
dismissal shall not be made for any cause that would be ground of demurrer to the
accusatory pleading.”
The standard for appellate review of a decision to dismiss charges or allegations in
the furtherance of justice is whether the trial court abused its discretion in making that
decision. (People v. Ortega (2000) 84 Cal.App.4th 659, 666, review den.)
“ ‘From the case law, several general principles emerge. Paramount among them
is the rule ‘that the language of [section 1385], “furtherance of justice,” requires
consideration both of the constitutional rights of the defendant, and the interests of
society represented by the People, in determining whether there should be a dismissal.
[Citations.]’ [Citations.] At the very least, the reason for dismissal must be ‘that which
would motivate a reasonable judge.’ [Citations.]” (People v. Orin (1975) 13 Cal.3d 937,
945, italics omitted (Orin).) “Courts have recognized that society, represented by the
People, has a legitimate interest in ‘the fair prosecution of crimes properly alleged.’
[Citation.] ‘ “[A] dismissal which arbitrarily cuts those rights without a showing of
detriment to the defendant is an abuse of discretion.” [Citations.]’ ” (Orin, supra, 13
Cal.3d. at p. 947.)
“From these general principles it follows that a court abuses its discretion if it
dismisses a case, or strikes a sentencing allegation, solely ‘to accommodate judicial

7
convenience or because of court congestion.’ (People v. Kessel (1976) 61 Cal.App.3d
322, 326.) A court also abuses its discretion by dismissing a case, or a sentencing
allegation, simply because a defendant pleads guilty. (Orin, supra, 13 Cal.3d at p. 949.)
Nor would a court act properly if ‘guided solely by a personal antipathy for the effect that
the three strikes law would have on [a] defendant,’ while ignoring ‘defendant’s
background,’ ‘the nature of his present offenses,’ and other ‘individualized
considerations.’ (People v. Dent (1995) 38 Cal.App.4th 1726, 1731.)” (People v.
Superior Court (Romero) (1996) 13 Cal.4th 497, 530-531, as modified on denial of rehg.
(Aug. 21, 1996) (Romero).)
The reasons for the dismissals as stated by the court included S.M.’s age, the fact
that he had no prior criminal history, and he had not reoffended in the more than four
years the case had been pending. Referencing his education and experience, the court
also agreed with defense counsel’s comments in the December 2 Letter, noting the impact
a fraud conviction would have on S.M.’s future career.9 The court was also impressed by
the amount of resources spent in pursuing an alleged fraudulent insurance claim worth
$360, where there was no actual loss.

9
No objection was made at or before the hearing by the prosecutor addressing the
statement made in the December 2 Letter about the potential “devastating” impact a fraud
conviction would have on S.M.’s career in high tech security, or to the court’s conclusion
that this would be the likely result from any conviction. On appeal for the first time, the
People argue that there was no “evidence” of such an impact, and that the trial court
“failed to inquire further how the felony conviction would prevent Respondent from
earning a living in his chosen profession . . . .” The time to make that objection was
during the hearing on December 17, 2015, as now it has been forfeited. (People v.
Boyette (2002) 29 Cal.4th 381, 423–424; People v. Mattson (1990) 50 Cal.3d 826, 853–
854, superseded by statute on another ground, People v. Jennings (1991) 53 Cal.3d. 334,
387, fn. 13; In re Heather H. (1988) 200 Cal.App.3d 91, 96.) In any event, we disagree
that “proof” of such a causal relationship is necessary where a fair inference can be
drawn that any fraud convictions, let alone felony fraud convictions, would damage, if
not end, a career in security for high tech companies, including Internet providers. Such
an inference can reasonably be drawn from S.M.’s education, work experience, and his
current position.

8
 While the diminutive amount of the loss10 is not controlling on the matter, the
nature of the offense does form part of the calculus the court must use in determining
how best to balance the interest in dismissing the case against the harm to the public.
(Romero, supra, 13 Cal.4th at pp. 530-531.)
Alternatively, the People urge that the dismissals give S.M. “special status”
because of his career choice. As we have noted, consideration of his age, education,
criminal record, and experience are all recognized “individualized considerations” courts
are to consider in deciding whether relief under section 1385 would be in the furtherance
of justice. (Romero, supra, 13 Cal.4th at pp. 530-531.)
The People also note that the fact that several of the counts under section 550,
subdivision (a) are punishable only as felonies served to underscore how the Legislature
views the importance of curbing insurance fraud. That may be so, but it does not dilute
the power of a court to exercise discretion to dismiss such charges where it fairly
concludes that the interests of justice are furthered by that action. “[T]here must be ‘ “a
clear legislative direction” ’ eliminating the trial court’s section 1385 authority.” (People
v. Fuentes (2016) 1 Cal.5th 218, 226.)
We do not disagree with the People’s general assertion that the dismissal of their
information here deprived the public of the opportunity to curb fraud against the
insurance industry. However, the dismissal of virtually any criminal charge in the
interest of justice will have collateral consequences, if not more significant consequences
than the dismissals here. The most obvious example came 20 years ago in Romero,
where the Supreme Court authorized the use of section 1385 to strike prior serious or
violent convictions which otherwise would have led either to the doubling of the sentence
for the current crime, or the imposition of a 25 years-to-life prison sentence for the
current crime. (Romero, supra, 13 Cal.4th at p. 530.) So long as the trial court balances
the interests of justice in a rational way, appellate courts have, and will, give their

10
The People point out that, while the amount of the claim was never paid,
GEICO also was entitled to recover as restitution its investigative costs and expenses.
There is nothing in the record quantifying those amounts.

9
imprimatur to such dismissals, even where the exercise of that judgment deprives the
prosecutor of asserting enhanced penalties. (People v. Clancey (2013) 56 Cal.4th 562,
579; People v. Bishop (1997) 56 Cal.App.4th 1245 [no abuse of discretion in dismissing
two prior strikes where current offense was petty theft].)
Two years after Romero was decided, in People v. Williams (1998) 17 Cal.4th 148
(Williams), the high court took the opportunity to clarify the approach trial and appellate
courts should take in considering dismissals under section 1385. (Id. at p. 152.) In
grappling with the concept of “furtherance of justice,” the court suggested there were two
general orientations: one seeking justice outside the bounds of the legal scheme to which
the defendant is subject, and one which looks for justice within the legal scheme’s
interstices, “informed by generally applicable sentencing principles relating to matters
such as the defendant’s background, character, and prospects.” (Id. at p. 160.)
The majority concluded that an attempt to look within the scheme in question, “as
informed by generally applicable sentencing principles,” is the better approach, and the
one that “offers some prospect of success.” (Williams, supra, 17 Cal.4th at p. 160.)
Thus, in considering whether the furtherance of justice is served by dismissal under
section 1385, no weight should be accorded factors extrinsic to the scheme, such as court
congestion or the “bare antipathy to the consequences for any given defendant.” (Id. at
p. 161.) Instead, “preponderant weight must be accorded to factors intrinsic to the
scheme, such as the nature and circumstances of the defendant's present felonies and prior
serious and/or violent felony convictions, and the particulars of his background,
character, and prospects.” (Ibid.)
Just as this approach informs the decision to strike prior convictions under section
1385 for purposes of the Three Strikes law, it likewise is plainly applicable to decisions
to dismiss portions or all of a criminal information under that same statute, and is
consistent with the principles articulated in Orin, Dent, and Romero discussed above.
Following this matrix is precisely what the trial court did in this case. The focus was on
the nature and circumstances of the current offenses, S.M.’s background, character, and
prospects, and his lack of a criminal record. In applying those factors, including the

10
interest of society in having crimes punished, the court concluded that the furtherance of
justice weighed in favor of dismissal. We discern no abuse of discretion in so
concluding.
In finding no abuse of discretion we note that the two principal cases relied on by
the People are distinguishable. In People v. McAlonan (1972) 22 Cal.App.3d 982, the
defendant had been charged with possession of marijuana. After the parties rested during
a court trial, the trial court delayed the case in order to determine through the probation
department what effect a conviction would have on the defendant’s plans to enlist in the
United States Navy. (Id. at p. 984.) While the investigation was pending the trial court
entered an order dismissing the charge,11 noting generally that “the interests of the
defendant and of his rehabilitation, and the interests of society in his rehabilitation”
would be better served by dismissal. (Ibid.)
The appellate court reversed the dismissal finding that the conclusory language
used by the trial court as justification for the dismissal did not satisfy the legal
requirement in section 1385 that the court’s minutes reflect the factual basis for the
decision.12 The court noted in dicta that a proper dismissal required a balancing of
society’s interest against that of the defendant’s rehabilitation. Using that scale the court
concluded that society’s interest in having the dismissal statute “dispensed with an even
hand” precluded the tool of dismissal from being used simply to avoid a conviction.
(People v. McAlonan, supra, 22 Cal.App.3d at p. 987.)
In People v. Superior Court (Montano) (1972) 26 Cal.App.3d 668, the trial court’s
dismissal order was supported by a statement of reasons equally as conclusory as that
ineffectively used by the court in McAlonan. In Montano, the defendant was tried by a

11
The original dismissal order contained no statement of reasons. Thereafter, the
court ordered the minutes amended nunc pro tunc to reflect its reasoning. (Id. at p. 985.)
12
Section 1385 was amended in 2014 adding that the statement of reasons must
be “entered upon the minutes” only if requested by one of the parties or when the courts
statement of reasons is not either electronically recorded or reported by a court reporter.
(Sen. Bill No. 1222 (2014 Reg. Sess.) § 1.) (People v. Jones (2016) 246 Cal.App.4th 92,
95-96.)

11
jury and convicted of a drug possession charge. At the sentencing hearing the trial judge
reduced the conviction to a misdemeanor and then dismissed the conviction under section
1385 because it would be in the best interests of the defendant’s family relationship to do
so. (Montano, at p. 670.) The reviewing court found this statement of reason to be
“purely subjective” and an insufficient basis for dismissal under the statute.13
As we have noted earlier in this opinion, the trial judge here was explicit in his
reasons for balancing the scale in favor of dismissal. In addition to the impact on the
defendant’s future career in high tech security, the court noted that S.M. had no criminal
history either before the events that resulted in the current charges or since.14
Surely not all judges would take the action employed by the trial court here. But,
the question we must answer is whether any reasonable judge could do so in his or her
discretion. (People v. Philpot (2004) 122 Cal.App.4th 893, 904-905.) Given the factors
articulated by the court, we conclude the answer is in the affirmative, and we find no
abuse of discretion.

13
The Montano court also observed that the general consideration relied on to
dismiss the conviction could be adequately taken into account at the time of sentencing.
(Ibid.) While S.M.’s age and crime-free record were matters that could be considered at a
subsequent sentencing, the court’s concern for the impact a conviction would have on his
career were not concerns that could be assuaged at sentencing. At any rate, it is no
answer to suggest that the Legislature’s grant of judicial discretion by enacting section
1385 can be eviscerated simply if the court otherwise can mitigate a sentence following a
conviction.
14
S.M. is not a young man. His counsel pointed out in his letter that S.M. had
two high school-aged children and had been working in the high tech and architectural
industries after earning his degrees for more than 20 years. The fact that he is relatively
older is a relevant consideration. (See People v. McGlothin (1998) 67 Cal.App.4th 468,
474–475 [We “consider the nature and circumstances of the present crimes; the
defendant’s prior convictions; his background, character and prospects.”].) In
McGlothin, the court considered the fact that the 40-year old defendant had been engaged
with the criminal justice system for half of his life, a consideration found to be relevant to
the adjudication of a motion to dismiss under section 1385. (Id. at p. 476.)

12
 III.
DISPOSITION
The judgment is affirmed.

_________________________
RUVOLO, P. J.

We concur:

_________________________
RIVERA, J.

_________________________
STREETER, J.

13
Trial Court: San Francisco City & County Superior Court

Trial Judge: Honorable Bruce E. Chan

Counsel for Appellant: San Francisco District Attorney’s Office, George
Gascón, District Attorney, Lawrence De Souza,
Assistant District Attorney, and Alexis Feigen Fasteau,
Assistant District Attorney.

Counsel for Respondent: Law Offices of Doron Weinberg, Doron Weinberg.

A147596, People v. S.M.

14