I respectfully dissent. The majority assert that a prosecutor who has in the first instance decided to dismiss a prosecution in the interest of justice, may nevertheless properly thereafter refuse to dismiss the charges until the defendant agrees to release civil claims against a third party. The majority then hold that the release, although signed under threat of an unjustified criminal prosecution, does not offend public policy. In my opinion the prosecutor, in deciding whether to maintain or dismiss a criminal proceeding, should strictly pursue the public interest: I think it improper for him to agree to dismiss charges only if the defendant will execute an agreement for the benefit of a private party. The dismissal-release agreement may deny the victim of a false arrest legal redress for his injury and may conceal such tortious conduct from judicial scrutiny.
The prosecutor has broad discretion to decide whether or not prosecution of an alleged crime will serve the public interest. (See People v. Tenorio (1970) 3 Cal.3d 89 [89 Cal.Rptr. 249, 473 P.2d 993]; Esteybar v. Municipal Court (1971) 5 Cal.3d 119 [95 Cal.Rptr. 524, 485 P.2d 1140].) He may, and should, consider a wide range of factors that bear on the merits of prosecution—the nature of the offense, the nature and severity of the sanctions that will be imposed upon conviction, the personal circumstances of the accused, the expense of prosecution and congestion in the courts.1 No authority, however, permits him to consid*615er the personal or private advantages that might accrue to himself or to third parties from the exercise of his power.2
This case amply demonstrates that the prosecutor’s consideration of third party interests operates to undermine the legitimate objectives of discretion. By his own testimony, the district attorney had determined, for legitimate reasons, that the misdemeanor charges against plaintiff should be dismissed.3 Having reached that decision, the district attorney’s plain duty was to dismiss the charges.4 Instead, he threatened to proceed with the prosecution—a prosecution that apparently did not advance the public interest and that would needlessly consume judicial resources—unless plaintiff would accommodate Barney’s Club by signing a release of all civil claims against the club.5
The decision of the Court of Appeals for the Ninth Circuit in MacDonald v. Musick (1970) 425 F.2d 373, demonstrates that a prosecutor abuses his discretion in threatening to maintain criminal charges unless a defendant will agree to waive his right to sue for false arrest. In MacDonald a criminal defendant had refused to stipulate to probable cause *616for arrest6 in return for dismissal of drunk driving charges. Following this refusal the prosecutor filed an additional charge of resisting arrest. Upon his conviction on the latter charge, MacDonald filed, and the court granted, a petition for habeas corpus. The court condemned the prosecutor’s attempt to condition the dismissal on a stipulation to probable cause, reasoning that the prosecutor improperly exercised his discretion and observing that the Canons of Ethics “have long prohibited the misuse of the criminal process by an attorney to gain advantage for his client in a civil case.” (425 F.2d at p. 376.) (See ABA Code of Prof. Responsibility.(1969) DR 7-105, EC 7-21.) The court thus granted habeas corpus relief on the grounds that the attempt to condition the dismissal on a stipulation to probable cause interfered with defendant’s assertion, by civil action, of his federal and state civil rights to resist an unlawful arrest. (425 F.2d at p. 377.)
The heart of the offense in MacDonald, as here, was the initial use of the prosecutor’s power with the intent to foreclose a civil action. “It is no part of the proper duty of a prosecutor to use a criminal prosecution to forestall a civil proceeding by the defendant against policemen, even where the civil case arises from the events that are also the basis for the criminal charge. We do not mean that a prosecutor cannot present such a criminal charge. What he cannot do is condition a voluntary dismissal of a charge upon a stipulation by the defendant that is designed to forestall the latter’s civil case.... Nor can the prosecutor, because of failure to obtain the demanded stipulation, then introduce another charge in the hope of defeating the possible civil action of the defendant.” (425 F.2d at p. 375, italics added.) Thus, the court indicated that, while the addition of the second charge was improper, the initial attempt to obtain a stipulation in return for dismissal was equally improper.
The majority incorrectly seek to distinguish MacDonald on the theory that the present plaintiff “voluntarily” agreed to the release. The threat to maintain a criminal prosecution is, however, necessarily coercive. An innocent defendant may well prefer to surrender his right to redress for false arrest rather than undergo the risk, expense, and incon*617venience of a criminal trial.7 Thus if the threat of prosecution is improper—because, as in this case, the prosecutor had determined that the interest of justice does not require prosecution—the arrestee’s submission to that threat does not render the bargain voluntary.8
Another federal court of appeals decision, Boyd v. Adams (7th Cir. 1975) 513 F.2d 83, makes clear the involuntary character of a release of civil claims brought about by the threat of criminal prosecution. In that case the plaintiff executed a release in return for dismissal of charges of disorderly conduct and resisting a police officer. Plaintiff was not in custody when she executed the release and no evidence indicates that the prosecutor engaged in overtly coercive conduct.9 Plaintiff testified, however, that she feared conviction and a possible jail sentence. The court held the release void, finding that it did not establish a knowing waiver of plaintiff’s rights because plaintiff executed it under inherently coercive circumstances.
I conclude that the MacDonald decision is on point. Its ringing denunciation of agreements that “condition a voluntary dismissal of a charge upon a stipulation by defendant that is designed to forestall the latter’s civil case” (425 F.2d at p. 375) should guide this court in the resolution of the present case.
The essential defect in such agreements, apart from their coercive nature, is that they do not achieve any legitimate function of the criminal process. That defect distinguishes the dismissal-release transaction from plea bargaining, in which the state benefits by saving the expense of trial and expediting the disposition of the criminal case. (See People v. West (1970) 3 Cal.3d 595, 604 [91 Cal.Rptr. 385, 477 P.2d 409].) The present agreement is a particularly egregious example, since, in this case, unlike MacDonald and Boyd v. Adams, the state does not even *618benefit by avoiding civil liability. The instant transaction benefited only Barney’s Club, a private party who obtained a bar to civil liability without risk or expense. Indeed, the prosecutor actually threatened to incur needless state expenditure for an unnecessary criminal trial in order to coerce plaintiff to agree to the release.
Implicitly recognizing that a dismissal-release agreement that served solely private interests might offend public policy, the majority suggest that such agreements serve the public interest by protecting those who “might be improperly exposed to claims of civil liabilities due to their involvement in apprehending the accused.” (maj. opn., ante, at p. 612.) (Italics added.) The words “improperly exposed” call for careful scrutiny because the state obviously has no interest in barring meritorious actions for false arrest. The majority opinion appears to assume, however, that in the present case, and in all dismissal-release transactions, the persons effecting the arrest are “improperly exposed” to civil liability; it does not recognize that the threat of criminal prosecution might induce the arrestee to surrender a meritorious cause of action.
While some potential actions for false arrest are improper, it is not the function of the prosecutor to decide whether a potential civil suit has merit. He is neither judge nor jury; he hears no evidence; his decision is not subject to judicial review. To permit him to use the heavy threat of criminal prosecution to induce potential plaintiffs to waive their right of action presents too great a risk that he will use the power to bar meritorious cases, leaving the victims of unlawful arrest without civil redress and concealing misconduct by the arresting party from judicial scrutiny.10
Judge Bazelon called attention to this danger in Dixon v. District of Columbia (D.C. Cir. 1968) 394 F.2d 966. In that case defendant tacitly agreed not to file a police misconduct charge in return for a nolle prose*619qui. When defendant nevertheless filed the misconduct charge, the prosecutor reopened proceedings on the original traffic offense. The court held the prosecution illegal, reasoning that, although the charges were arguably sound, the courts “.. . may not become the ‘enforcers’ of these odious agreements.” (394 F.2d at p. 969.) The evil of such agreements, Judge Bazelon asserted, is not that proper charges may be dropped, but that they “suppress complaints against police misconduct which should be thoroughly aired in a free society. And they tempt the prosecutor to trump up charges for use in bargaining for suppression of the complaint. The danger of concocted charges is particularly great because complaints against the police usually arise in connection with arrests for extremely vague offenses such as disorderly conduct or resisting arrest (fn. omitted).” {Ibid.)
The spectre of concealed misconduct by private security forces is equally disturbing. Private security guards are an increasingly significant element in our system of control of crime, and they are heavily relied upon for crime prevention in the private sector. (Harrigan & Sundance, Private Police in California: A Legislative Proposal (1974) 5 Golden Gate L.Rev. 115, 116-117.) Private security guards perform functions similar to those of the public police; yet studies have shown that persons employed in this capacity are often less qualified than those serving as public police officers. Private security guards, moreover, are frequently poorly trained and supervised, and subject to less stringent internal review procedures, than are the public police. {Id., at pp. 119-129.) This court has expressed concern that searches by private security forces present a “particularly serious threat to privacy” (Stapleton v. Superior Court (1968) 70 Cal.2d 97, 100, fn. 3 [73 Cal.Rptr. 575, 447 P.2d 967]); we have recently held that searches by private security guards are subject to constitutional proscriptions. (People v. Zelinski (1979) 24 Cal.3d 357 [155 Cal.Rptr. 575, 594 P.2d 1000].) Yet the majority now encourage public prosecutors routinely to protect such private personnel from civil actions that could serve to uncover patterns of abuse.
That danger is not obviated by this prosecutor’s good faith belief that defendant’s guards had acted with probable cause. The prosecutor’s investigation of the alleged misconduct was limited to a telephone conversation with an employee of Barney’s Club and can scarcely be deemed conclusive. While the prosecutor acted within his proper discretion in declining to file criminal charges against Barney’s Club, he had, as discussed above, no discretion to dispose of a civil claim against the *620club. On the contrary, the civil remedy is a significant mechanism for exposing and determining abuses of power; when the public prosecutor declines to pursue a charge of misconduct, he should be particularly sensitive to the need to preserve the alternative civil remedy.11
The district attorney properly exercised his discretion in reaching his original decision to dismiss the charges against plaintiff and, in so doing, would have served the best interests of the system of criminal justice. The salutary effect of that decision was seriously undermined by the district attorney’s insistence that plaintiff surrender a valuable property right in return for the dismissal of charges. The prosecutor could not properly exact a penalty from plaintiff or use the criminal process to forestall plaintiff’s civil action against Barney’s Club. Such conduct is a dangerous and unwarranted extension of the plea bargain concept and it should not be condoned by this court.
Bird, C. J., and Newman, J., concurred.
See American Bar Association Standards Relating to the Prosecution Function (Approved Draft 1971) (hereafter ABA Standards), standard 3.9(b): “The prosecutor is not obliged to present all charges which the evidence might support. The prosecutor may in some circumstances and for good cause consistent with the public interest decline to prosecute, notwithstanding that evidence exists which would support a conviction. Illustrative of the factors which the prosecutor may properly consider in exercising his discretion are: (i) the prosecutor’s reasonable doubt that the accused is in fact guilty; (ii) the extent of the harm caused by the offense; (iii) the disproportion of the authorized punishment in relation to the particular offense or the offender; (iv) possible improper motives of the complainant; (v) prolonged nonenforcement of a statute, with community acquiescence; (vi) reluctance of the victim to testify; (vii) cooperation *615of the accused in the apprehension or conviction of others; (viii) availability and likelihood of prosecution by another jurisdiction.”
It is noteworthy that none of these factors relates to private third party interests.
See also National District Attorneys Association, National Prosecution Standards (1977) sections 9.1, 9.2 and 9.3.
See, e.g., ABA Standards, supra, standard 3.9 (c): “In making the decision to prosecute, the prosecutor should give no weight to the personal or political advantages or disadvantages which might be involved or to a desire to enhance his record of convictions.”
For a general discussion of prosecutorial discretion and the need for more rigorous structuring and review of the exercise of trial discretion, see Davis, Administrative Law Treatise (1979, 2d ed.) at pp. 216-304.
On direct examination as a defense witness, the district attorney testified that “[h]e [plaintiff] advised me that one of the reasons why he would like to have the charges against him dismissed was that he was a law student and that he felt that the charges against him would have an adverse effect upon his being qualified to take the Bar exam in the state of California." Asked if plaintiff's concern about the bar was a factor in his ultimate decision to dismiss the charges, the district attorney stated that “was primarily the only factor that 1 went on." He also explained that “. . . 1 didn’t understand why we would have to go to a jury trial for a $25 matter."
Conversely, if the district attorney had concluded that the public interest required prosecution, he should have proceeded. It is equally as improper to dismiss charges in exchange for a release of civil claims when prosecution is warranted, as to do so when prosecution is unwarranted.
On cross-examination the district attorney explained that he “.. .would have dismissed the charges if Mr. Hoines would sign a release, but I wanted it understood that there was a criminal action pending against him... .The only reason why I didn’t go in right at that time and request an outright dismissal had nothing to do with whether I thought the case was good or bad. It was just whether or not Mr. Hoines had submitted his release at that time.”
As the majority explain {ante, p. 608, fn. 5), a stipulation to probable cause serves the same function as a release of civil liability: that is, when lack of probable cause for an arrest is an essential element of the tort of false arrest (Whaley v. Kirby (1962) 208 Cal.App.2d 232 [25 Cal.Rptr. 50]), such a stipulation effectively forecloses a civil action for false arrest.
The plaintiff in this case was particularly concerned about the impact of a criminal record upon his admissibility to the bar; that concern added to the coerciveness inherent in the situation.
The majority attempt to distinguish MacDonald on the ground that the parties did not agree to a release or stipulation in that case. The issue in MacDonald did not turn on a release or stipulation only because the defendant in that case refused to accede to the bargain offered by the prosecutor. The reasoning of MacDonald, in condemning the prosecutor for attempting to bar defendant’s right to institute a civil action, leaves little doubt that the court would have found any such release or stipulation contrary to public policy.
In fact, the release discussions were initiated by plaintiff’s attorney. The court found this fact irrelevant in light of the inherently coercive circumstances. So long as the release practice is common, the court reasoned, a defense attorney will be obligated to explore that alternative, rendering it irrelevant who initiates the discussion.
Alert to the danger posed by agreements to conceal wrongful conduct, the Legislature has provided in Penal Code section 153 that any person who, “having knowledge of the actual commission of a crime, takes money or property of another, or any gratuity or reward, or any engagement or promise thereof, upoh any agreement or understanding to compound or conceal such crime, or to abstain from any prosecution thereof’ is himself guilty of a crime. The dismissal-release transaction in the present case may violate that section; although the majority find the section inapplicable because the prosecutor did not personally profit from the release (maj. opn., ante, at p. 610), at least one commentator has indicated that a person may be guilty of compounding a crime although the consideration for that act accrues to a third party. (See Compounding Crimes: Time for Enforcement? (1975) 27 Hastings L.J. 175, 178 and cases there cited.)
Compare Safer v. Superior Court (1975) 15 Cal.3d 230, 238 [124 Cal.Rptr. 174, 540 P.2d 14]: “The absence of any statute empowering the district attorney to appear in private litigation such as the instant case demonstrates, moreover, legislative awareness that our legal system has long depended upon the self-interested actions of parties to pursue a dispute to its conclusion, or to decide, alternatively, that further time-consuming litigation serves no one’s best interests [fn. omitted]. Thus the district attorney’s intrusion into this arena of conflicting private interests serves neither the public interest nor the statutory intent.”