Can an order of dismissal be reversed due to the failure to include the reasons for dismissal in the minutes of the trial court?

California, United States of America


The following excerpt is from People v. Gutierrez, 65 Cal.App.4th Supp. 1, 76 Cal.Rptr.2d 166 (Cal. Super. 1998):

As for appellant's argument that the order of dismissal must be reversed due to the trial court's failure to include the reasons for the dismissal in the minutes, Penal Code section 1385, subdivision (a) expressly provides that "[t]he reasons for the dismissal must be set forth in an order entered upon the minutes." " 'It is settled law that this provision is mandatory and not merely directory.... "[I]f the reasons are not set forth in the minutes, the order dismissing may not be considered a dismissal under section 1385...." [Citations.]' " (People v. Rivadeneira (1985) 176 Cal.App.3d 132, 137, 222 Cal.Rptr. 548.) " '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." [Citations.]' " (Ibid.) As the trial court minutes do not reflect the reasons for dismissal, the dismissal under Penal Code section 1385 cannot stand.

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