Opinion
E052961
02-06-2012
THE PEOPLE, Plaintiff and Appellant, v. CHARLES JAMES PRICE, Defendant and Respondent.
Michael A. Ramos, District Attorney, and Stephanie H. Zeitlin, Deputy District Attorney, for Plaintiff and Appellant. Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. FVI1002259)
OPINION
APPEAL from the Superior Court of San Bernardino County. Eric M. Nakata, Judge. Reversed.
Michael A. Ramos, District Attorney, and Stephanie H. Zeitlin, Deputy District Attorney, for Plaintiff and Appellant.
Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and Respondent.
The People of the State of California appeal from the superior court's grant of a Penal Code section 995 motion brought by defendant Charles James Price. The felony complaint alleged that defendant had committed burglary (§ 459), and he had been held to answer by the magistrate after the preliminary hearing. Defendant's section 995 motion to dismiss the burglary charge was granted on the grounds that there was insufficient evidence of defendant's intent to constitute the crime of burglary. The superior court then allowed defendant to plead to the court to what it considered a lesser included offense of criminal trespass, and he was sentenced to three years' probation.
All further statutory references are to the Penal Code unless otherwise indicated.
The People appeal the grant of the motion of dismiss pursuant to section 1238, subdivision (a)(1), (5), (6), (8) and (10) on the following grounds:
Section 1238, subdivision (a)(1) provides in part that "[a]n appeal may be taken by the people from any of the following: [¶] (1) An order setting aside all or any portion of the indictment, information, or complaint. . . ."
1. The superior court's ruling was an abuse of discretion, as there was a sufficient basis from which the magistrate could find that defendant had a felonious intent when he entered the victim's residence to support the burglary charge.
2. The superior court's amendment of the information to charge misdemeanor trespass infringed upon the charging discretion of the district attorney and violated the separation of powers doctrine.
3. Criminal trespass is not a lesser included crime of burglary.
I
FACTUAL AND PROCEDURAL BACKGROUND
A. Charges
On October 6, 2010, defendant was charged by a felony complaint with first degree burglary. (§ 459.) It was further alleged that defendant had served five prior prison terms. (§ 667.5, subd. (b).) Defendant entered a not guilty plea and denied the prior prison term allegations.
The factual background is taken from the preliminary hearing transcript.
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At the preliminary hearing, the People presented the following evidence to the magistrate.
On October 5, 2010, Kelli McDonald lived in a residence located in Apple Valley in San Bernardino County. McDonald was completely deaf. About 2:00 p.m., she was in her bedroom taking a nap; she had been asleep for about 45 minutes. As she was sleeping, she felt the blanket she had covering her move. She thought it was her cat. She rolled over to get her cat and discovered defendant standing by the side of her bed lifting the blanket. McDonald told defendant not to hurt or touch her.
McDonald immediately rolled off the bed and ran to the front door. The security screen door attached to the front door was locked from the inside. McDonald had not locked that door when she laid down for her nap because her son was coming over to visit. McDonald also noticed that her purse had been moved. Prior to taking her nap, she had placed it on the dining room chair. As she left her apartment, she noticed that it had been moved to the couch and was wide open.
McDonald ran to her neighbor's house, crying, and banged on the front door. Defendant followed her. McDonald's neighbor was not at home. A stroller was near the neighbor's front door, and McDonald threw it at defendant to keep him away from her. McDonald ran to another residence and found a man whom she asked to call the police. Defendant went up to the man, spoke to him, and then shook his hand. Defendant walked away.
McDonald waited for the police to arrive. When they arrived, she went with them to her apartment. Her purse had been rifled through and her wallet opened, but nothing was missing. There were leaves and rocks in her purse that had not been there prior to defendant entering her apartment. McDonald did not know defendant prior to that day and did not give him permission to enter her residence.
San Bernardino County Sheriff's Deputy Josh Conley responded to the 911 call. Defendant was apprehended near the scene, riding on the handle bars of another person's bicycle just north of the area. Defendant told Deputy Conley that he was told to go into McDonald's residence by another person whom he would not identify. He entered the residence through an unlocked door. He admitted going into McDonald's residence and that she screamed "bloody murder" when she saw him. Defendant admitted he ran after McDonald.
Defendant appeared possibly to be under the influence of alcohol. He urinated in the deputy's patrol car and again when he was inside the jail. When defendant pulled down his pants to urinate, leaves came out of them.
Defendant did not present any affirmative defense. The People asked that defendant be held to answer.
Defense counsel argued that there was no evidence that defendant intended to commit a felony when he entered McDonald's residence. "The only thing I see is possibly a trespass or maybe aggravated trespass at the most." There was nothing taken from the house or McDonald's purse. There were no threats or physical contact with McDonald to support some kind of sexual assault.
The People argued that defendant entered McDonald's residence without permission. He rifled through her purse. Although nothing was taken, there was intent when he entered the residence as evidenced by his going through her purse. It was possible there was nothing in the wallet to take. Defendant was connected to the leaves in the purse because he had leaves in his pants later at the jail.
The magistrate ruled, "What I . . . have is a gentleman went into a home that he had no business being in, went directly in a bedroom of a woman who was sleeping and began to lift up a blanket. That in and of itself is enough for the Court to find that he had the requisite intent, whether he changed his mind . . . doesn't matter at this point in time. With the information I have and the standard of preliminary hearing, the Court is going to find that there is sufficient evidence based solemnly on the standard at preliminary hearing that the crime alleged did occur, and [defendant], I am going to hold you to answer for that charge."
C. Section 995 Motion
An information was filed on November 8, 2010, with the same charges as the felony complaint. It was later amended to add three additional prior prison term allegations pursuant to section 667.5, subdivision (b). On November 18, 2010, defendant pleaded not guilty. On January 10, 2011, defendant filed a motion to dismiss under section 995.
In the motion, defendant argued that he never had the intent to commit a felony or larceny when he entered McDonald's residence. He never touched the victim or said anything to her. He did nothing giving rise to the level of a sexual assault. Any felonious intent was merely speculation. Moreover, defendant actually stopped after his alleged crime and shook the neighbor's hand.
The People filed opposition. They referred to the evidence that defendant had moved McDonald's purse, and her wallet had been opened. Defendant did not have consent to enter McDonald's home. The intent had to be inferred from all of the facts and circumstances. The facts that McDonald's purse was moved and her wallet was opened was sufficient to support the magistrate's finding that he entered to commit a larceny. The leaves in the purse and in defendant's pants connected him to the purse.
A hearing was held on the section 995 motion. The superior court first stated that the section 995 motion was untimely and that it did not like last-minute filings. It noted that it had read the written motion and opposition and had reviewed the preliminary hearing transcript. Defense counsel submitted on the motion. The People reiterated that there was evidence of his felonious intent.
The superior court noted that there was insufficient evidence of defendant's intent to commit larceny. Nothing was taken from McDonald's purse, and defendant actually added the leaves and rocks. The door to the residence was not locked when defendant entered. The superior court criticized the magistrate for finding that defendant went "directly" into McDonald's bedroom as the evidence did not show that he went directly to the bedroom.
The superior court then noted it was not sure if defendant lifted up the blanket. It also criticized the magistrate's ruling on the ground that it was unclear which intent defendant possessed, the intent to commit larceny or the intent to commit a sexual assault. The superior court stated, "But the Court does not indicate . . . which intent, what intent, the defendant had or what the Court was finding. And I'm troubled by that because in looking at the preliminary hearing, I cannot discern either what the intent of the defendant is from the record. Common sensically, yeah, you would probably, say, [w]ell, what else was he there for? But that's not the issue. The issue is whether or not there was a reasonable suspicion that the crime has been committed and the defendant has committed it."
The superior court found that the only crime that it saw was trespass of a residence. It granted the motion under section 995 and essentially amended the information to charge defendant with misdemeanor trespass of a residence pursuant to section 602.5.
Defendant immediately indicated that he would change his plea and enter a no contest plea to the court to a misdemeanor trespass charge. On the plea form, it was stated that trespass was a lesser included offense of a violation of section 459. Defendant was to receive three years' probation.
The superior court went over the plea form with defendant. Defendant understood the plea and did not have any questions. He entered his guilty plea. The superior court noted that defendant was getting "quite a benefit" from the plea, and he was going to have to be on probation for three years. He was also sentenced to 106 days in county jail but given time served. The superior court also told defendant that he was very "lucky" in this case. The People noted that they were not part of the plea but requested a stay-away order from McDonald. The People filed a timely notice of appeal.
II
ANALYSIS
The People first contend that the superior court erred by granting defendant's motion to dismiss made pursuant to section 995 because the evidence presented at the preliminary hearing showed sufficient cause to believe that defendant was guilty of burglary.
"A magistrate's function at a felony preliminary hearing is to determine whether or not there is 'sufficient cause' to believe defendant guilty of the charged offense. [Citations.] The term 'sufficient cause' means '"reasonable and probable cause"' or 'a state of facts as would lead a [person] of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion of the guilt of the accused.' [Citations.] In performing this function, the magistrate may 'weigh the evidence, resolve conflicts, and give or withhold credence to particular witnesses.' [Citations.] 'A charge will not be dismissed for lack of probable cause "if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it."' [Citation.]" (People v. Dawson (2009) 172 Cal.App.4th 1073, 1087; see also Alvarado v. Superior Court (2007) 146 Cal.App.4th 993, 999-1000.)
"[T]he showing required at a preliminary hearing is exceedingly low." (Salazar v. Superior Court (2000) 83 Cal.App.4th 840, 846.) "[T]he prosecution's burden of persuasion at a preliminary hearing is far lower than at trial." (People v. Chapple (2006) 138 Cal.App.4th 540, 546.) "The requisite showing may be established by circumstantial evidence." (Ibid)
Section 995 provides that an information shall be set aside by the court in which the defendant is arraigned upon his motion if the defendant is committed "without reasonable or probable cause" after a preliminary hearing. (Id., subd. (a)(2)(B).) "[T]he superior court ruling on a section 995 motion . . . may [not] substitute its judgment for that of the committing magistrate concerning the weight of the evidence or the credibility of the witnesses. [Citations.]" (People v. Plengsangtip (2007) 148 Cal.App.4th 825, 835 [Fourth Dist., Div. Two].)
"'Upon review of a motion to set aside an information, [the reviewing] court disregards the superior court's ruling and directly examines that of the magistrate. [Citation.] We, like the superior court, must draw every legitimate inference in favor of the magistrate's ruling and cannot substitute our judgment on the credibility of witnesses or weight of the evidence.' [Citations.] A reviewing court cannot disturb an exercise of discretion unless it is 'arbitrary, capricious, or patently absurd.' [Citation.]" (Miller v. Superior Court (2002) 101 Cal.App.4th 728, 740-741.) "'We review the evidence in support of the information to determine whether as a matter of law it is sufficient, not whether the trial court's ruling was reasonable. [Citations.]'" (Salazar v. Superior Court, supra, 83 Cal.App.4th at p. 842.)
Under California law, a person commits burglary when he or she "enters any house . . . or other building . . . with intent to commit grand or petit larceny or any felony. . . ." (§ 459.) Burglary of an inhabited dwelling house is burglary of the first degree. (§ 460, subd. (a).) Direct evidence proving the intent to commit burglary rarely exists, and such intent must be inferred from the totality of the facts and circumstances. (People v. Lewis (2001) 25 Cal.4th 610, 643; People v. Frye (1985) 166 Cal.App.3d 941, 947.)
Here, defendant entered McDonald's unlocked residence and then, at some point, locked the door behind him. He moved her purse. Although he did not take anything from the purse, it was clear that he had rifled through it and opened her wallet. Defendant also went to McDonald's bedroom, where he lifted the blanket covering her. Despite the superior court's comment that it was unsure if this occurred, the evidence clearly established the defendant lifted the blanket. The magistrate concluded that defendant went directly to the bedroom and was lifting up the blanket, which was enough to show that he had felonious intent.
The magistrate noted that "whether he changed his mind . . . doesn't matter at this point in time." The superior court criticized this comment, finding it could not determine for which intent the magistrate found defendant entered the residence: the intent to commit larceny or the intent to commit some sexual assault.
The evidence that defendant entered the residence with the intent to commit larceny was supported by the evidence presented at the preliminary hearing. Whether defendant, upon entering McDonald's residence, formed the intent to commit some sort of sexual assault against McDonald is not necessarily mutually exclusive from the intent to commit larceny. Certainly, defendant's intent to commit larceny was evidenced by his going through McDonald's purse. Despite the fact that he did not take anything from the purse, his intent to commit larceny when entering the residence reasonably can be inferred from the fact that he did not know McDonald, he locked the screen door upon entering, he moved her purse, and he opened the wallet.
Moreover, it is certainly reasonable to infer from the facts and circumstances surrounding his actions that he intended to commit a sexual assault. Defendant entered McDonald's residence, locked the door, and entered her bedroom, lifting the blanket. Both were supported by the facts presented at the preliminary hearing. The superior court erred by finding that since it could not discern whether the magistrate rested its decision on defendant's intent to commit a larceny or a sexual assault, the evidence presented at the preliminary hearing did not support the charges. It failed to recognize the standard of review that the magistrate need only find "'a state of facts as would lead a [person] of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion of the guilt of the accused.' [Citations.]" (People v. Dawson, supra, 172 Cal.App.4th at p. 1087.)
Moreover, as a reviewing court, we determine whether as a matter of law the evidence was sufficient. (Salazar v. Superior Court, supra, 83 Cal.App.4th at p. 842.) Here, both theories were supported by the evidence presented and justified defendant being held to answer on the charge of burglary. Certainly, the evidence presented at trial might not support both theories. However, the facts presented at the preliminary hearing certainly supported that defendant entered the residence with felonious intent. As such, the superior court erred by granting defendant's section 995 motion.
Since we conclude that the superior court erred by granting defendant's section 995 motion, we need not address the People's additional claims that the trial court improperly invaded the district attorney's charging discretion and that trespass is not a lesser included offense of burglary. Anything occurring after the grant of the section 995 motion is null and void. The parties shall be placed in the same position as they would have been had the section 995 motion been denied by the trial court.
III
DISPOSITION
The order granting defendant's motion to set aside the information under section 995 and dismissing the case is reversed. The matter is remanded for reinstatement of the information.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
Acting P.J.
We concur:
KING
J.
MILLER
J.