California Court of Appeals, First District, Fourth Division
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
RUVOLO, P. J.
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 section 1385, all relating to acts by
respondent S.M. 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.
TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DISMISSING THE
COMPLAINT UNDER SECTION 1385
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).
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.
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,
more continuances were requested and granted,  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.
Statement of Facts Germane to the Charges
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.
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
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.
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.
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. He could not
claim the loss of his stolen computer because his policy did
not cover the loss of personal items.
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
Court Orders the Remaining Counts Dismissed Pursuant to
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.”
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
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 ...