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People v. S.M.

California Court of Appeals, First District, Fourth Division

March 1, 2017

THE PEOPLE, Plaintiff and Appellant,
v.
S.M., Defendant and Respondent.

         San Francisco City & County Superior Court No. 223640, Honorable Bruce E. Chan, Trial Judge

          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.

          RUVOLO, P. J.

         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 Code[1] 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 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 motion to dismiss all remaining counts in the interest of justice. This appeal immediately followed that ruling.

         B. Statement of Facts Germane to the Charges[5]

         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, 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 ...


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