Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County Super. Ct. No. 08CM1551. James T. LaPorte and Lynn C. Atkinson, Judges.
Judge LaPorte ruled on the motion to dismiss; Judge Atkinson presided over the trial and sentencing.
J. Edward Jones, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and J. Robert Jibson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CORNELL, Acting P.J.
A jury convicted Andre Laffraey Smith of attempting to make a criminal threat (Pen. Code, §§ 422, 664), a lesser included offense to the charged crime of making a criminal threat. The jury found Smith was not guilty of separate counts of burglary (§ 459) and vandalism (§594, subd. (a)). Smith was sentenced to 18 months in prison.
All further statutory references are to the Penal Code unless otherwise stated.
Smith argues the trial court erred in denying his section 995 motion seeking a dismissal of the criminal threats charge as unsupported by substantial evidence at the preliminary hearing. The magistrate who conducted the preliminary hearing found the criminal threats charge was not supported by the evidence and did not hold Smith to answer to the charge. Nonetheless, the People included the charge in the information.
We conclude that the criminal threats charge should not have been included in the information because this offense was not transactionally related to the offenses for which the magistrate found probable cause to detain Smith. Accordingly, we will reverse the judgment and order the criminal threats charge dismissed.
FACTUAL AND PROCEDURAL SUMMARY
Alfonse Cardens and Bambi Smith are siblings. At the time of the events in this case, Smith and Bambi were married, but were not living together. The first incident occurred when Cardens was driving towards his rental house. He saw Smith riding a bicycle with a trailer attached to the rear of the bike. After Cardens passed by, Smith jumped off his bicycle and threw his hands up in the air. Cardens, who was not particularly fond of Smith, did not stop.
We will refer to Bambi Smith by her first name, not out of disrespect but to avoid any confusion to the reader.
Cardens arrived at the rental house a short while later. He noticed that Smith had called his cell phone and had left a voicemail message. The message, which was played for the jury, stated:
“You [sic] a bitch, Alfonso, drive by and flip somebody off, bitch. You got a problem with me, homme [sic]? Stop your fucking truck. Drive your bitch ass truck and put em up, because if I catch you, I’ll put you [sic] ass in the hospital, nigga. And that’s my word bitch ass nigga. I’ll be out on res too, and might shoot your punk house ass house up, bitch.”
Cardens called the police and his wife, who was at home, to let her know about the message. Cardens was not worried about Smith’s threat at the time, but he would be worried if he were with one of his children and ran into Smith. Cardens worked on the yard at his rental house for approximately two to three hours after speaking with the police.
When Smith was contacted by police officers, he claimed that Cardens ran him off of the road. Smith then called Cardens and they had an argument. Smith then called Bambi and argued with her. Cardens was with Bambi at the time, so Cardens was put on the phone and he and Smith argued a second time. After the second argument, Smith called Cardens and left the voicemail at issue in this case.
Two days later Cardens again called the police because his wife did not feel safe, and he was becoming more worried about something happening to his children. Cardens told the police he kept a gun next to his bed because he did not feel safe. Before he called the police the second time, Cardens learned that someone had broken into Bambi’s house.
Bambi was in the process of divorcing Smith at the time of trial. At the time of the second incident, Bambi and Smith were separated. On May 20, 2008, she discovered her house had been broken into while she was at work. A window was broken, her television was broken, and her bedroom was thrashed. She also discovered a note lying on the floor in front of her television. The note read, “Your [sic]next, bitch,” and was signed with Smith’s name. Bambi showed the note to the investigating officers, but they told her they did not need it so Bambi threw it away. Smith had left the threatening voicemail on Cardens’s phone the day prior to the break-in.
Smith testified that he had a brief confrontation with Cardens on the afternoon in question. Cardens made an offensive gesture to Smith as Smith was riding home from his daughter’s school with her in the bike carrier. Cardens then forced Smith and his daughter off of the road with his vehicle. Smith stopped and made a gesture towards Cardens. Cardens stopped. Smith challenged Cardens to a fight, and then both men left the area without further incident. When Smith got home, he called Cardens and left a message on his cell phone. He denied breaking into Bambi’s home and pointed out that he had a key to let himself in. So if he wanted to enter the house, he would not have to break a window.
The information charged Smith with making a criminal threat (§ 422), felony vandalism (§ 594, subd. (a)), and burglary (§ 459). The jury found Smith not guilty of making a criminal threat, vandalism, and burglary. Smith was found guilty of attempting to make a criminal threat, a lesser included offense to the criminal threat charge. Smith was sentenced to an aggravated term of 18 months in prison.
DISCUSSION
After hearing the People’s evidence at the preliminary hearing, the magistrate held Smith to answer on the vandalism and burglary counts, but found the People had failed to prove that Cardens was in immediate fear as a result of the message left by Smith. Accordingly, the magistrate determined there was not reasonable and probable cause to believe that Smith had violated section 422.
Despite the magistrate’s findings, the information filed by the district attorney charged Smith with violating section 422. Smith responded by filing a section 995 motion seeking to have the criminal threats charge dismissed as unsupported by the evidence. Smith argues the trial court erred in denying his section 995 motion.
The Requirements of the Holding Order
The magistrate is required to hold the defendant to answer for an offense if, after the preliminary hearing, it appears that there is reasonable and probable cause to believe an offense was committed and the defendant committed the offense. (§ 872; People v. Slaughter (1984) 35 Cal.3d 629, 636 (Slaughter).)
“[T]he magistrate is not a trier of fact. He does not decide whether defendant committed the crime, but only whether there is ‘“some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it.”’ [Citation.] If the record shows strong and credible evidence of defendant’s guilt, the magistrate may reasonably assume the possibility of his guilt. Thus in many cases he will not find it necessary to resolve all conflicts in the evidence, in order to find probable cause to hold the defendant for trial. The magistrate’s power to decide factual disputes exists to assist him in his determination of sufficient cause [citation]; if he can determine that issue without resolving factual conflicts, he may do so. [¶] 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 pp. 637-638, fn. omitted.)
Section 739, referred to in the above quotation, obligates the district attorney to file an information within 15 days after the magistrate issues the order of commitment, which includes “the offenses 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.” (Ibid.) “[A]n information which charges the commission of an offense not named in the commitment order will not be upheld unless (1) the evidence before the magistrate shows that such offense was committed [citation], and (2) that the offense ‘arose out of the transaction which was the basis for the commitment’ on a related offense. [Citations.]” (Jones v. Superior Court (1971) 4 Cal.3d 660, 664-665 (Jones).) This rule applies even if the information charges an offense for which the magistrate concluded the evidence did not establish reasonable and probable cause to believe it was committed by the defendant. (Id. at p. 665.)
The Crimes Were Not Transactionally Related
The magistrate concluded there was insufficient evidence that Jones violated section 422, but the information charged him with this offense. The People chose not to utilize the provisions of section 871.5, which permits the prosecutor to move the trial court to reinstate a charge the magistrate found was not supported by the evidence. (Id., subd. (a).) Pursuant to Jones, we first must decide whether the criminal threats charge (added crime) was transactionally related to the burglary and vandalism charges (charged crimes).
As will be seen, this issue was not raised in the trial court or in the briefs originally filed in this court. Pursuant to Government Code section 68081, we requested additional briefing on the issue from the parties.
The burglary and vandalism charges related to the illegal entry into Bambi’s home and the damage inflicted within. This incident occurred the day after the altercation between Smith and Cardens. The only relationship between the two offenses is that Bambi is Cardens sister, and the police suspected that Smith was responsible for both incidents.
The People contend that this relationship is sufficient. They point out that Cardens became concerned for his safety after he learned of the illegal entry into Bambi’s home, thus providing the element of sustained fear required for the criminal threats charge. Therefore, according to the People, we must consider events of the following day, that is, the illegal entry and vandalism, as part of the same transaction as the criminal threats charge.
The People cite two cases to support their argument. In People v. Downer (1962) 57 Cal.2d 800 (Downer), the magistrate found probable cause to hold the defendant on charges of incest (§ 285) and rape (§ 261), both charges arising out of a single assault of the victim that occurred on December 5, 1959. At the preliminary hearing, the victim testified that on December 16 the defendant entered her bedroom and argued with her about sex. The defendant left after hitting the victim, resulting in a bloody nose, but without any type of sexual contact. (Downer, at p. 805.) The prosecutor filed an information charging defendant with the two counts found sufficient by the magistrate, and with a third count of attempted incest arising from the December 16 incident. The defendant argued the trial court erred in denying his section 995 motion directed at the attempted incest count.
The Supreme Court held that the two incidents were transactionally related and that the section 995 motion properly was denied. “There was testimony adduced at the preliminary hearing of a series of incestuous acts over a period of time, including ‘probably five or six times’ in Trinity County. In each instance the same pattern was followed by defendant. [¶] The testimony regarding the events on December 5 can be considered in ascertaining the intent with which defendant entered his daughter’s bedroom on December 16. [Citations.] [¶] In addition to this evidence of intent, there was evidence at the preliminary hearing that defendant had entered his daughter’s bedroom on December 16 and had a fight with her ‘about sex’ and that the fight was ‘the same sort of thing.’ The latter expression clearly referred to the events of December 5, which the complaining witness had related in detail. [¶] Sufficient evidence showing probable cause to support the charge of attempted incest alleged to have occurred on December 16, 1959, therefore was presented at the preliminary hearing, and, accordingly, the district attorney had the right to file the additional count of attempted incest pursuant to the provisions of section 739 of the Penal Code. [Citations.] [¶] The count added to the information charged a different but related crime bearing on the same transaction involved in the commitment order.” (Downer, supra, 57 Cal.2d at pp. 811-812.)
The second case cited by the People is People v. Santos (1990) 222 Cal.App.3d 723 (Santos). The victim and two young boys were left alone with Santos. The victim testified at the preliminary hearing that Santos first assaulted her, then fondled her, and then forced her to orally copulate him several times over the period of a few hours. Santos also orally copulated the victim and inserted his finger into her vagina. These events all occurred on a single occasion. (Id. at p. 730.) The complaint charged Santos with a single count of committing a lewd and lascivious act by force on a child under the age of 14 (§ 288, subd. (b)). The magistrate found probable cause to hold Santos on the charge. The information charged Santos with six additional sexually based offenses arising out of these events. Unsurprisingly, the appellate court held the trial court did not err in denying Santos’s section 995 motion because the additional charges were transactionally related to the offense the magistrate found was supported by probable cause. (Santos, at p. 734.)
Smith cites to Parks v. Superior Court (1952) 38 Cal.2d 609 to support his contention that the charged crime and the added crime were not transactionally related. Parks was charged with two counts of grand theft (§§ 484, 487) and one count of intentionally writing a bad check (§ 476a, subd. (a)). One count of grand theft arose out of a transaction wherein Parks obtained $2,463 from a Mrs. Palmer by misrepresenting the value of security promised to ensure repayment of the money. (Parks, at p. 610.) The second count of grand theft and the check charge arose out of a lumber transaction. Parks ordered lumber from a company and made a down payment of $600. (Id. at p. 614.) He accepted delivery of the lumber and then issued a check for the balance of the purchase price without sufficient funds in the bank to pay the check. (Id. at p. 610.) The complaint charged Parks with theft of the lumber and the check charge. The magistrate concluded there was probable cause to hold Parks only for the check charge. The People filed an information charging Parks with all three crimes. The Supreme Court, citing the transactionally related rule, held the grand theft charge involving Palmer was not transactionally related to the check crime and must be dismissed. (Id. at pp. 612-613.) The Supreme Court concluded that the grand theft charge related to the lumber was transactionally related to the check charge and properly was included in the information. (Id. at pp. 613-614.)
The Supreme Court held that even though the check and grand theft crimes were transactionally related, there was insufficient evidence presented at the preliminary hearing to find probable cause that Parks committed theft in obtaining the lumber and ordered that charge dismissed as well.
The People argue that this case “falls somewhere between Downer and Santos.” This argument has merit only from the most superficial perspective. The added offenses in Santos occurred within a few hours, and the added offense in Downer occurred 11 days later. Here, the added offense occurred the next day. From a timeline perspective, this case does indeed fall between Downer and Santos. The timeline, however, is the only similarity between the cases.
This case falls somewhere between Parks and Downer, but is much more analogous to Parks. The added crimes in both Downer and Santos involved the same victim as the charged crime. The added crime in Parks that was not transactionally related involved a different victim. The added crimes in Downer and Santos were closely related and of the same type (sex crimes) as the charged crime. The added crime in Parks that was not transactionally related also was a crime against property, but involved two different methods of obtaining someone else’s property (theft versus writing a bad check).
While the cases establish that the added crime does not have to be identical to the charged crime, the crimes must bear a close relationship. In Downer the added crime was an attempt to commit the same crime as the charged crime. The crimes occurred 11 days apart, but were committed in virtually identical circumstances. The only reason the added crime was an attempt is because the victim fought off the defendant’s attempts to molest her.
In Santos the charged crime was a sexual offense (lewd and lascivious acts by force on a child under the age of 14), and the added crimes were sexual offenses (one count of lewd and lascivious acts by force on a child under the age of 14 (§ 288, subd. (b)), four counts of forcible oral copulation (§ 288a, subd. (c)), and one count of penetration with a foreign object (§ 289, subd. (a)). While the added crimes were not identical, they were part of a single course of conduct and substantially similar to the charged offense.
Here, the crime against Smith that was added to the information was distinct from the charged crime. The added crime occurred at a different time and place, involved a different victim, and involved a different type of criminal conduct. The only relationship between the two crimes was that the victims were siblings. This tenuous relationship is inadequate to establish the crimes were transactionally related.
The People urge us to find the crimes were transactionally related because Cardens testified he became fearful for his safety (and that of his family) after the break-in at Bambi’s residence. But this does not establish a relationship between the crimes. This evidence merely establishes the effect the break-in at Bambi’s residence had on Cardens. It does not aid the People.
To establish that the two crimes were transactionally related using this theory, the People would have to prove that Smith broke into Bambi’s residence with the intent to cause Cardens to be afraid. But for Smith to have this intent, he would have to engage in some very convoluted reasoning. First, Smith would have to know before the break-in that Cardens did not become fearful after receiving the phone message. Second, Smith would have to decide that he wanted to take additional steps to cause Cardens to become fearful. Third, he would have to decide that if he broke into and vandalized Bambi’s residence, Cardens would become fearful. This thought process would require Smith to ignore numerous more direct and effective ways to instill fear in Cardens, if that was his intent.
If there were any evidence to suggest that Smith utilized such convoluted reasoning, then the crimes could be related. But there is not. Nothing in the record suggests that Smith broke into Bambi’s residence to cause Cardens to become fearful. One could only speculate that Smith entertained such thoughts. And if one were to speculate, it seems much more likely that if Smith broke into Bambi’s residence, a crime of which the jury found Smith not guilty, it was because he was upset with his estranged wife and wanted to extract revenge for some perceived slight she committed.
Nor is the added crime transactionally related to the charged crimes as an aid to determine Smith’s meaning when he left the message on Cardens’s cell phone. The People point out that all of the surrounding circumstances should be considered when trying to ascertain what Smith was trying to convey to Cardens. In this case, Smith’s meaning was clear. Moreover, we do not see any reasonable inference arising from the break-in at Bambi’s residence that is related to the phone message left on Cardens phone. The phone message was left before the break-in, and it did not refer to Bambi or her property. It was limited to Cardens and his property. Nor did the break-in at Bambi’s residence make any reference to Cardens.
Because the phone call to Cardens was not transactionally related to the break-in at Bambi’s residence, the People erred in adding the criminal threats charge to the information after the trial court found there was not probable cause to believe that Smith issued a criminal threat to Cardens.
Smith Received Ineffective Assistance of Counsel
Our conclusion that the criminal threats charge was not transactionally related to vandalism and burglary charges does not end our inquiry because Smith failed to assert this grounds for dismissal of the criminal threats ground in the trial court. Accordingly, the issue is forfeited. (People v. Simon (2001) 25 Cal.4th 1082, 1097, fn. 9.) Regardless of the forfeiture, Smith is entitled to relief if the forfeiture is the result of ineffective assistance of counsel.
“Establishing a claim of ineffective assistance of counsel requires the defendant to demonstrate (1) counsel’s performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient representation prejudiced the defendant, i.e., there is a ‘reasonable probability’ that, but for counsel’s failings, defendant would have obtained a more favorable result. [Citations.] A ‘reasonable probability’ is one that is enough to undermine confidence in the outcome. [Citations.]” (People v. Dennis (1998) 17 Cal.4th 468, 540-541.)
“If the record contains an explanation for the challenged aspect of counsel’s representation, the reviewing court must determine ‘whether the explanation demonstrates that counsel was reasonably competent and acting as a conscientious, diligent advocate.’ [Citation.] On the other hand, if the record contains no explanation for the challenged behavior, an appellate court will reject the claim of ineffective assistance ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.…’ [Citation.]” (People v. Cudjo (1993) 6 Cal.4th 585, 623.)
Since the issue never was raised in the trial court, the record does not contain any explanation from Smith’s counsel for the failure to raise the lack of transactional relationship between the charged crimes and the added crime. There is not a satisfactory explanation, however, for failing to raise the issue in Smith’s section 995 motion. While the issue is not one of the more common ones that trial attorneys face, it should have been raised because it would have disposed of the criminal threats count and reduced Smith’s criminal exposure at trial. Evidence of the incident would have been inadmissible and, as the result of this case demonstrates, the probability before trial that Smith would avoid a conviction would have increased dramatically. Counsel made the section 995 motion. Adding a second ground for dismissal of the criminal threats count would have required little additional effort. Since there is no rational explanation for failing to do so, counsel was ineffective.
It also is obvious that the failure to move for dismissal due to the lack of a transactional relationship between the charged crime and the added crime caused Smith prejudice. Had the argument been made, Smith would not have been exposed to the criminal threats charge at trial. Therefore, he would not have been convicted of the attempt to make a criminal threat.
Conclusion
A defendant is entitled to a new trial if he received ineffective assistance of counsel at trial. (People v. Lagunas (1994) 8 Cal.4th 1030, 1036.) In this case, Smith received ineffective assistance of counsel and was prejudiced, thereby requiring that we reverse the conviction of attempting to make a criminal threat. Moreover, the criminal threats count must be dismissed because it was charged improperly by the prosecution.
DISPOSITION
The judgment of conviction for attempting to make a criminal threat is reversed. The matter is remanded to the trial court to issue an order granting Smith’s section 995 motion and dismissing the criminal threats count because it was not transactionally related to the burglary and vandalism charges. The jury verdict finding Smith not guilty of the vandalism and burglary charges is not affected by this disposition and is therefore affirmed.
WE CONCUR: GOMES, J., DAWSON, J.