Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. NA078006, Richard R. Romero, Judge.
Michael P. Judge, Public Defender, Albert J. Menaster, Jesus DeLa Riva and Karen Nash, Deputy Public Defenders, for Defendant and Respondent.
Steve Cooley, District Attorney, Brentford Ferreira and Beth L. Widmark, Deputy District Attorneys, for Plaintiff and Appellant.
BOREN, P. J.
The People appeal from an order setting aside an information charging Raymond Morales (defendant and respondent) with one count of possession for sales of cocaine in violation of Health and Safety Code section 11351. The People assert their right to appeal an erroneous decision by a trial court to set aside an information and argue that: (1) there was sufficient evidence to hold defendant to answer for possession for sale of cocaine; (2) once a magistrate reduces a count, the People may file the greater charge pursuant to Penal Code section 739, (3) the trial court’s use of an incorrect standard of review of the magistrate’s decision when ruling on defendant’s section 995 motion led to the erroneous decision; and (4) this court is free to independently review the magistrate’s decision.
All further references to statutes are to the Penal Code unless stated otherwise.
FACTUAL AND PROCEDURAL BACKGROUND
At defendant’s preliminary hearing on June 10, 2008, before Judge John D. Lord, the prosecutor amended the complaint to charge a violation of Health and Safety Code section 11351, possession for sale of cocaine. Officer Jeannine Bedard testified regarding her background, training, and experience in the field of narcotics and cocaine. She stated that on March 1, 2008, she saw her partner recover two baggies of marijuana, a baggie of a white powdery substance resembling cocaine, and approximately $618 from defendant. The parties stipulated that the white substance was determined to contain cocaine and to weigh 6.98 grams.
When the defense objected to Officer Bedard giving her opinion as to whether the drugs were for sale, the officer testified regarding her background, training, and experience with narcotics for sales. She had made approximately 25 arrests for possession for sales and had worked with narcotics officers where they had observed sales. She had taken the persons into custody and recovered narcotics, money, and cell phones in cases where she observed a lack of paraphernalia. She did not find any paraphernalia in defendant’s possession. She was of the opinion that defendant possessed the cocaine for sale based upon his possession of a cell phone, the amount of money in mostly small denominations found on his person, the packaging of the marijuana, and the packaging and the amount of cocaine. She was also aware that other officers had had contacts with defendant for drug sales.
On cross-examination, Officer Bedard stated that her opinion regarding sales was not based upon what other officers had told her. She did not know if defendant’s cell phone was functional. She did not observe defendant in a hand-to-hand transaction. When asked how many doses were contained in the cocaine found, Officer Bedard said, “it depends,” since there are many different “ways and usages.”
With respect to the lack of individual packaging of the cocaine, Officer Bedard believed defendant was going to sell the whole baggie. She was not sure of the street value of the baggie, but she believed defendant said he bought it for about $100. Officer Bedard was of the opinion the baggie was worth a lot more than $100—perhaps $150. She did not know how long it would take a heavy user to use the quantity of the drug found on defendant. When asked if a heavy user would be able to use the amount in one day, she “guess[ed] he could.” She then stated that if a user ingested it all at one sitting he might overdose. When asked if the cocaine could be injected or snorted, Officer Bedard replied that “they can do all kinds of things with this.” She then stated that, in her opinion, the quantity was a bit too much for one day, and it was a week’s worth even for a heavy user. She did not know the street value of the marijuana but stated it was packaged for sales, since it was in two small plastic bindles, or packages. She estimated that approximately 10 cigarettes could be made from each of the baggies.
After the parties submitted, Judge Lord stated, “Well, it appearing to me from the evidence presented that the offense of possession rather than possession for sale has been committed, and that there is sufficient evidence that the defendant is guilty of that. I hold him to answer, therefore, for simple possession. I’ll reduce bail to $30,000.”
On June 24, 2008, the People filed a one-count information charging defendant, as in the complaint, with possession for sale of a controlled substance in violation of Health and Safety Code section 11351 and alleging two prison priors. On July 15, 2008, defendant filed a motion to set aside the information under section 995. The motion stated that Judge Lord, pursuant to section 871, dismissed the count alleging a violation of Health and Safety Code section 11351 and held the evidence was sufficient to believe defendant was guilty only of simple possession. Because the prosecution did not present sufficient evidence during the preliminary hearing establishing sufficient cause to believe that defendant was guilty of possession with the intent to sell, the count should be dismissed.
Section 995, subdivision (a) provides: “the indictment or information shall be set aside by the court...: [¶]... [¶] [(2)(B)] [where] the defendant had been committed without reasonable or probable cause.”
Section 871 provides: “If, after hearing the proofs, it appears either that no public offense has been committed or that there is not sufficient cause to believe the defendant guilty of a public offense, the magistrate shall order the complaint dismissed and the defendant to be discharged, by an indorsement on the depositions and statement, signed by the magistrate, to the following effect: ‘There being no sufficient cause to believe the within named A.B. guilty of the offense within mentioned, I order that the complaint be dismissed and that he or she shall be discharged.’’’
The People’s motion in opposition asserted there was sufficient legally admissible evidence presented at the preliminary hearing to support a finding of a “strong suspicion” that defendant committed the charged crime and that he was guilty. (See People v. Uhlemann (1973) 9 Cal.3d 662, 667 [magistrate’s role limited to determining whether there is “sufficient cause” to believe defendant guilty of a public offense, which equates to “such a state of facts as would lead a man of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion of the guilt of the accused”].) The People summarized the evidence in support of possession for sales and argued that a reviewing court may not inquire into the sufficiency of the evidence.
At the section 995 motion hearing on July 28, 2008, Judge Richard Romero stated that his role was limited to deciding whether the magistrate had an appropriate basis for making a factual decision, which was subject to great deference on review. Defendant argued first that the prosecutor should have filed a motion under section 871.5, which was the proper response to a ruling under section 871, and the People had failed to do so in a timely manner. Defendant also argued that Judge Lord had the legal basis to dismiss the sales count because the quantity was arguably usable in a week’s time by an addict, and the officer’s expertise and credibility as an expert was discredited by the magistrate.
Section 871.5 provides in pertinent part that “[w]hen an action is dismissed by a magistrate... the prosecutor may make a motion in the superior court within 15 days to compel the magistrate to reinstate the complaint or a portion thereof and to reinstate the custodial status of the defendant....” (§ 871.5, subd. (a).)
The People maintained that there was sufficient information before Judge Lord to find that the crime was possession for sales. The prosecutor stated that the facts of the case clearly showed that the officer had sufficient experience and there was, based on the officer’s opinion, more than enough cocaine for possession for sales. The quantity found, when considered with the packaging, the large amount of money, and the cell phone, constituted sufficient evidence for a finding of possession for sales.
Judge Romero replied that this was not the issue; rather, it was whether there was a substantial basis for the magistrate to rule. He stated, “The standard is whether there was a substantial basis for the magistrate’s holding, not whether, in fact, it was possessed for sale or not, or whether the evidence supports the conclusion that it was possessed for sale.”
Judge Romero then asked the prosecutor, “And how would you explain his ruling? [Defense Counsel] says two possibilities. One, he disbelieved your witness, which means that’s the end of it, or he believed the witness to an extent but concluded that the amount was a useable amount for a heavy user and therefore wasn’t possessed for sale, in which case I can’t disturb that ruling, either. So is there a third conclusion or explanation?” The prosecutor replied that “unfortunately for the court, Judge Lord didn’t provide a reason as to why he made that decision.” The court replied, “That’s right. We’re guessing.” The court continued, “assuming he is a reasonable fact-finder, I just suggested two reasonable explanations. Whether there is a third reason that supports your position or—that’s all I’ll say. Is there a third?” The prosecutor said that the third position was that Judge Lord was wrong.
Judge Romero noted that Judge Lord deliberately reduced the offense to simple possession. He found there was a substantial basis for that ruling, regardless of whether the magistrate discredited the witness or found that the amount was a useable amount for a heavy drug user and therefore not for sales. Judge Romero granted the section 995 motion and dismissed the information.
DISCUSSION
I. People’s Right to Appeal
We agree with the People that the trial court’s setting aside of the information under section 995 is appealable. (See People v. Alice (2007) 41 Cal.4th 668, 680; People v. Chapman (1984) 36 Cal.3d 98, 105, fn. 3. “Penal Code section 1238, subdivision (a)(1) permits the People to appeal ‘[a]n order setting aside all or any portion of the... information.”’ (People v. Alice, supra, at p. 680.)
II. Relevant Authority
A district attorney has several options after a magistrate has dismissed a charge under section 871: “[T]he district attorney may either refile a new complaint, file an information under section 739 charging the dismissed matter [citation], or—if he [or she] wishes to eliminate the effect of the first dismissal for section 1387 purposes—challenge the dismissal directly under section 871.5. [Citation.]” (Ramos v. Superior Court (1982) 32 Cal.3d 26, 35 (Ramos), italics added; fn. omitted.) As long as the offense was supported by the evidence taken before the magistrate, it may be included in the information—even if the magistrate did not see fit to include the offense. (Ramos, supra, 32 Cal.3d at p. 35; see also People v. Slaughter (1984) 35 Cal.3d 629, 633 (Slaughter)); Jones v. Superior Court (1971) 4 Cal.3d 660, 664–665 (Jones); Solano v. Superior Court (2009) 169 Cal.App.4th 1361, 1369; People v. Warren (1958) 163 Cal.App.2d 136, 141.)
Section 739 provides in pertinent part that the prosecutor may file in the superior court an information charging the defendant with “either the offense or offenses named in the order of commitment or any offense or offenses shown by the evidence taken before the magistrate to have been committed.” (§ 739.)
In reviewing a section 995 motion, we “disregard[] the ruling of the superior court and directly review[] the determination of the magistrate.” (People v. Laiwa (1983) 34 Cal.3d 711, 718; People v. Superior Court (Lujan)(1999) 73 Cal.App.4th 1123, 1127 (Lujan).) “The character of judicial review under section 739 depends on whether the magistrate has exercised his power to render findings of fact. If he has made findings, those findings are conclusive if supported by substantial evidence. [Citations.] If he has not rendered findings, however, the reviewing court cannot assume that he has resolved factual disputes or passed upon the credibility of witnesses. A dismissal unsupported by findings therefore receives the independent scrutiny appropriate for review of questions of law.” (Slaughter, supra, 35 Cal.3d at p. 638.)
III. Arguments
The People contend the order dismissing the complaint must be set aside because there was reasonable cause to believe defendant committed the charged crime. They argue that the magistrate made no findings of fact contradicting that conclusion and therefore we must conduct an independent review of the record to determine whether the magistrate’s order was erroneous as a matter of law.
Defendant contends the trial court properly granted the section 995 motion, since the magistrate impliedly found that defendant did not possess the cocaine with the specific intent to sell it. According to defendant, it does not require guesswork to conclude that the magistrate listened to Officer Bedard’s testimony and found it not credible with regard to the element of specific intent.
IV. Independent Review Required
As noted, the standard of review turns on whether the magistrate made express findings of fact, an issue on which the parties disagree. Defendant asserts the magistrate made an implied factual finding and relies on Walker v. Superior Court (1980) 107 Cal.App.3d 884 (Walker) for the proposition that an implied factual finding was sufficient to prevent further proceedings on the charged offense. The People contend the magistrate made no factual findings, and assert that, when there are no disputed facts, the decision regarding probable cause is a legal one subject to independent review. The People argue that the superior court engaged in prohibited guesswork to determine how the magistrate arrived at his decision. We agree with the People and conclude the magistrate made no factual findings.
Findings of fact are the factual determinations made by the magistrate after weighing the evidence, drawing factual inferences, and resolving conflicts in the evidence along with issues of witness credibility. (People v. Salzman (1982) 131 Cal.App.3d 676, 684; People v. Farley (1971) 19 Cal.App.3d 215, 221 (Farley).) Such findings may constitute the ultimate elemental facts of the charged offense or the defense. (See Jones, supra, 4 Cal.3d at p. 666 [in prosecution for rape, magistrate’s finding that victim consented triggered the substantial evidence standard of review under section 871.5].)
In Farley, the court stated that “[a] clear example of [a factual finding] would be where the magistrate expresses disbelief of a witness whose testimony is essential to the establishment of some element of the corpus delicti. [¶] Where, however, the magistrate either expressly or impliedly accepts the evidence and simply reaches an ultimate legal conclusion therefrom—i.e., whether or not such evidence adds up to reasonable cause that the offense had been committed—such conclusion is open to challenge....” (Farley, supra, 19 Cal.App.3d at p. 221.) “A mere refusal to hold to answer does not amount to a factual determination fatal to the charge.” (People v. Superior Court (Day) (1985) 174 Cal.App.3d 1008, 1017.) Unless the magistrate made express findings of fact, we “cannot assume that he has resolved factual disputes or passed upon the credibility of witnesses.” (Slaughter, supra, 35 Cal.3d at p. 638.)
Defendant argues that, “Although it is true that the magistrate did not state with precision which element the prosecution failed to prove, the magistrate impliedly found that [defendant] did not possess the cocaine with the specific intent to sell it.” This “finding,” as characterized by defendant, was merely the ultimate legal conclusion. It cannot be transformed into a factual finding merely by labeling it as such. The magistrate made no comment regarding the evidence or lack of evidence of defendant’s intent, nor did he mention the significance of the individual items of evidence in relation to that element. He made no mention of the adequacy or credibility of the expert’s testimony on the issue of intent to sell. The trial court admitted it had to guess as to the rationale for the magistrate’s ruling, an exercise that the case law soundly disapproves.
Moreover, the case law is clear that a magistrate’s factual finding fatal to a criminal allegation cannot be implied. (People v. Superior Court (Day), supra, 174 Cal.App.3d at p. 1019.) It is true that in Walker, relied upon by defendant, the appellate court determined the magistrate’s ruling constituted an implied finding that the charged offense of murder had not been shown, and that the People could proceed only on a charge of manslaughter. (Walker, supra, 107 Cal.App.3d at p. 887.) In Walker, however, the circumstances were vastly different from those in the instant case. In that case, Walker, a store owner, was charged with the murder of a customer who had previously made death threats against him and who was apparently reaching for a weapon. The appellate court found that the magistrate made three findings: (1) Walker knew the victim had a bad reputation; (2) the victim threatened to kill Walker and engaged in aggressive conduct toward Walker before the shooting; and (3) Walker feared for his personal safety. The magistrate also stated there was sufficient provocation to rebut a presumption of malice. (Id. at p. 888.) The appellate court concluded that these findings prohibited the prosecution from filing a charge of murder, since, although the magistrate made no express finding that Walker acted in self-defense, “such finding was implicit in those actually made on the evidence presented without any taint of conjecture.” (Walker, supra, at p. 890, italics added); see also People v. Superior Court (Henderson) (1986) 178 Cal.App.3d 516, 523; People v. Superior Court (Day), supra, 174 Cal.App.3d at p. 1018.)
Here, in contrast, the court made no factual findings whatsoever, and the superior court conceded it was guessing as to the magistrate’s rationale. “[W]here guesswork is required to determine what the magistrate found, there is no finding worthy of the deference required by the Jones decision.” (People v. Superior Court (Gibson) (1980) 101 Cal.App.3d 551, 554.) Therefore, in accordance with well-established precedent, we conclude that the magistrate made no factual findings, and we independently review the order of dismissal. (Slaughter, supra, 35 Cal.3d at p. 638.)
V. Sufficient Evidence Supports Refiling of Charge
“It is blackletter law that the magistrate’s role is limited to determining whether or not there is sufficient or probable cause to believe that the defendant is guilty of a public offense and that the information may not be set aside if the evidence produced at the preliminary hearing supports probable cause to believe that the defendant is guilty of the offense.” (People v. Buckley (1986) 185 Cal.App.3d 512, 522–523, citing People v. Uhlemann, supra, 9 Cal.3d at p. 667; Walker, supra, 107 Cal.App.3d at pp. 888–889.)
If there is some evidence to support the charge, the courts will not inquire into its sufficiency (Jackson v. Superior Court (1965) 62 Cal.2d 521, 525). An information may be set aside if there is a total absence of evidence to support a necessary element of the crime charged. (People v. Caffero (1989) 207 Cal.App.3d 678, 684.) An information should not be set aside nor prosecution thereon prohibited, however, if there is some rational ground for assuming the possibility an offense has been committed and the accused is guilty of it. (Slaughter, supra, 35 Cal.3d at p. 637.)
Defendant was charged with possession for sale of cocaine. (Health & Saf. Code, § 11351.) The elements of this offense are: (1) the defendant unlawfully possessed cocaine; (2) the defendant knew of its presence; (3) the defendant knew of the substance’s nature as a controlled substance; (4) when the defendant possessed the cocaine, he intended to sell it, and (5) the cocaine was in a usable amount. (See CALCRIM No. 2302.)
There was evidence presented at the preliminary hearing that was unimpeached and credible and that supported the inference appellant possessed the cocaine for the purpose of sales. (See People v. McGlothen (1987) 190 Cal.App.3d 1005, 1015.) “[T]o reject the prosecution evidence at the probable cause stage, either the evidence presented must be inherently implausible, the witnesses must be conclusively impeached, or the demeanor of the witnesses must be so poor that no reasonable person would find them credible.” (Cooley v. Superior Court (2002) 29 Cal.4th 228, 258.) “The evidentiary showing required for a preliminary hearing is not substantial,” and a defendant may be held to answer as long as there is some rational ground for assuming that an offense was committed and that the defendant committed the offense. (Lujan, supra, 73 Cal.App.4th at p. 1127.)
There was no dispute defendant possessed cocaine. Officer Bedard and her partner found defendant to possess almost 7 grams of cocaine, two baggies of marijuana, and over $600 in mostly small denominations. Defendant had a cell phone and had no paraphernalia with which to ingest the cocaine. Officer Bedard testified that other officers knew defendant to be a seller of narcotics. Officer Bedard had 10 years of experience in the LAPD and was accepted as an expert by the magistrate. She expressed the opinion that defendant possessed the cocaine for sales and was probably going to sell the entire baggie. We believe this evidence, considered as a totality, was sufficient to find probable cause to hold defendant to answer on the charge of possession of narcotics for the purpose of sales. (See Lujan, supra, 73 Cal.App.4th at p. 1127; Rideout v. Superior Court (1967) 67 Cal.2d 471, 474.)
In sum, the magistrate’s legal conclusion that the evidence was insufficient to find probable cause was in error and not entitled to the deference granted it by the superior court. (People v. McGlothen, supra, 190 Cal.App.3d at p. 1015.) The People were entitled to allege a violation of Health and Safety Code section 11351 in the information charging defendant, and the trial court erred in setting aside the information.
DISPOSITION
The order setting aside the one-count information charging a violation of Health and Safety Code section 11351 is reversed. It is ordered that the count be reinstated, and the matter is remanded.
We concur: ASHMANN-GERST, J., CHAVEZ, J.