Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF150576, Janice M. McIntyre, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Rod Pacheco, District Attorney, and Kelli Catlett, Deputy District Attorney, for Plaintiff and Appellant.
Helen S Irza, under appointment by the Court of Appeal, for Defendant and Respondent.
RICHLI J.
Plaintiff and appellant the People of the State of California appeal from the order denying their Penal Code section 871.5 motion to reinstate the complaint filed against defendant David Christopher Ulloa. The complaint alleged that defendant had committed two counts of assault with a deadly weapon with force likely to cause great bodily injury, and two counts of making criminal threats. After the preliminary hearing, the complaint was dismissed. The People’s motion to reinstate the complaint was subsequently denied. The People bring this appeal on the sole claim it was error to deny their motion and that the complaint should be reinstated. We agree and remand to the trial court with directions to reinstate the complaint.
I
FACTUAL AND PROCEDURAL BACKGROUND
The factual background is taken from the preliminary hearing transcript.
A. Charges
On May 22, 2009, defendant was charged by a felony complaint with two counts of assault with a deadly weapon (a knife) by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)), against Katia Lopez and Clinton Fallen, and two counts of making terrorist threats (§ 422), also against Lopez and Fallen, with the special allegation for the latter two counts that defendant personally used a dangerous or deadly weapon (§ 12022, subd. (b)(1)). It was further alleged as to all counts that defendant had suffered one prior serious or violent felony conviction (§§ 667, subd. (c) & (e)(1), 1170.12, subd. (c)(1).)
All further statutory references are to the Penal Code unless otherwise indicated.
B. Preliminary Hearing
At the preliminary hearing, the prosecutor advised the magistrate that he wanted to prove up an additional charge of violating section 273.5, subdivision (a), domestic violence, against defendant’s wife. The magistrate responded, “Fine. It will depend. We’ll see what the evidence is, but call your first witness.”
The People first presented the testimony of Katia Lopez. She testified that, on April 26, 2009, she was at a barbecue at her cousin Tracey Ulloa’s house. Tracey was married to defendant, and she had two children. Lopez, her boyfriend Clinton Fallen, and their two children arrived at their house around 6:00 or 7:00 p.m.
About 1:00 a.m., since all of the children were already asleep in one of the rooms, Tracey and defendant invited Lopez and Fallen to stay the night in their guest room. There were no problems or altercations during the barbecue, and everyone had a good time.
Lopez and Fallen lay down on their bed and then heard “banging” coming from the bedroom occupied by defendant and Tracey. Lopez surmised the banging was just Tracey and defendant having sex.
Right after Lopez heard the banging, defendant kicked open the double doors to the guest room. Defendant started screaming at Fallen, saying, “Fuck you, ” and using other profane language. Lopez and Fallen tried to calm defendant down and told him they would get their children and leave. Defendant did not enter their room. He kept yelling “something about ‘my wife’” and then ran to the kitchen. Lopez could not recall defendant making any specific threats at this time.
Lopez heard defendant going through the drawers in the kitchen. She then observed defendant coming toward the guest room carrying a “big” kitchen knife. He was holding the knife above his shoulder with his elbow bent. Before defendant reached the bedroom, Lopez closed the double doors. She screamed to Fallen that defendant had a knife. Lopez held the double doors to the bedroom closed; there was no lock on them. Defendant kicked at the door. Defendant was “cursing” while he kicked the door.
Defendant then stabbed the door with the knife. Lopez observed “a little bit of the tip” of the knife come through the door. The tip of the knife came within one foot of her arm. At this point, Fallen got up to help her keep the door closed because he saw the knife. Defendant stabbed the door five to ten times. Lopez was able to call the police from her cellular telephone. Defendant eventually stopped, but Lopez did not want to exit the room because she was afraid. She was also afraid for her children.
Fallen went out the window in the room to check on their children. At that point, the police arrived.
Lopez stated that defendant never entered the bedroom where she and Fallen were staying either before or after he got the knife. She did not remember what defendant said while he was stabbing the door because she herself was screaming. Lopez also did not recall telling the police officers that she heard screaming coming from the room occupied by defendant and Tracey. When the police arrived, defendant had already left the property.
Fallen also testified. He had been “drunk and high” from smoking marijuana and drinking two to four cases of beer during the barbecue. Fallen and Lopez went in the guest room around 1:00 a.m. Before he fell asleep, he heard “thumping” sounds and thought that defendant and Tracey were having sex in their nearby room. He just laughed and went to sleep. Lopez woke him up and told him something was happening in the house. She told him that someone kicked the guest room doors.
Fallen got out of bed and went to the doors, which he stated were closed. Lopez asked Fallen to help her because she said “he” was kicking the doors. Fallen held the doorknob and put his foot against the doors. The doors never moved, and he did not hear anything outside. Fallen asked Lopez what was going on. He never heard Lopez say defendant had a knife. He heard someone kick the door one time and then it was silent. He never heard anyone say anything from the other side of the doors.
Fallen and Lopez opened the doors and saw nothing on the other side. Fallen recalled that Lopez called the police. He did not see knife points come through the doors. He thought that Lopez called the police because “I guess she felt threatened.” He himself was not scared “at all.”
Fallen climbed out the window to see if he could figure out what was happening. Fallen never saw defendant kick the door or with a knife in his hand, and he never heard defendant threaten him.
Riverside Police Officer David Bee was dispatched to the home where Tracey and defendant lived. He spoke with Lopez. Lopez told him that when they all went to their rooms, she heard screaming and banging coming from the room where defendant and Tracey were staying. Defendant then started screaming at Lopez and Fallen, and kicked their doors. Lopez told Officer Bee that defendant was screaming, “I’m gonna kill you.” She told him that the doors were shut the entire time and that she only opened them a crack and saw defendant coming toward the room holding a knife. At this point, defendant yelled, “What did you do to my girl?” When there was no response, defendant said, “I’m gonna kill you, mother fucker.” Defendant then stabbed the door. Officer Bee recalled that Lopez said the knife “pierced” the door. Lopez told Officer Bee that the tip of the knife came “really close” to her body. Lopez appeared shaken up and frightened.
Officer Bee also spoke with Fallen. Officer Bee explained “[a]s far as [Fallen’s] demeanor, he seemed very shaken up, scared. It seemed genuine to me that, you know, he was worried about, you know, him, even his life possibly being in danger.” Fallen told him that defendant was kicking at their door and screaming about something to do with Fallen being with his wife. Fallen told Officer Bee that he and Lopez held the door because they were scared about what defendant might do. Fallen then saw the knife tip come through the door and he moved his body away from the door so it would not injure him.
Fallen and Lopez never told Officer Bee that defendant kicked the door in. Fallen never told Officer Bee that defendant was trying to push the door open; he was just stabbing it. Fallen told Officer Bee that Tracey had flirted with him at the barbecue and that was possibly why defendant was mad.
After Officer Bee’s testimony, the prosecutor intended to present further evidence on the domestic violence charge. The magistrate responded that it was completely outside the facts of the case and that the People were stuck with the charges as filed. The prosecutor argued it was the same officer and the victim was present. The magistrate responded, “I’m sorry. You’re going to have to file that as a separate matter. I’m just not going to permit it in this case in view of what’s the stand of the evidence here.” Defendant presented no testimony.
Defense counsel initially argued that defendant should not be held to answer on the terrorist threat charges because Fallen himself did not hear anything. The magistrate cut him off and said, “You don’t need to argue that matter further.” Defense counsel argued against the assault charges on the ground that defendant never attempted to enter the room and that it appeared he was just taking out his frustration on the doors.
The prosecutor argued the evidence showed that defendant pushed the knife with enough force to go through the door where he knew both victims were standing. He was kicking the door and trying to get through.
The magistrate ruled, “All right, but there’s no evidence that any more than the tip of the knife blade came through so I’m looking at 245. ‘Any person who commits an assault upon the person of another with a deadly weapon’ so we’ve got a door in[ ]between them. So I just think this case is grossly over filed, so all four counts are dismissed.”
C. Motion to Reinstate Complaint
On October 13, 2009, the People filed their motion to reinstate the complaint and defendant’s custody status pursuant to section 871.5.
The People argued that the magistrate had erred as a matter of law by dismissing the complaint with the explanation that it had been overcharged. The People contended they had presented “far more than sufficient evidence to hold the defendant to answer on the charges filed.” Defendant filed opposition, arguing that the magistrate made factual findings as to the insufficiency of the charges.
At the hearing on the motion, the prosecutor provided no further argument. Defense counsel argued that the magistrate had made findings of fact and that they were entitled to deference. Defense counsel argued that the magistrate had found that a door was stabbed and that none of the witnesses had testified as to the section 422 charged. Further, the magistrate had evaluated the credibility of the witnesses.
The prosecutor complained that the only factual findings were that there was a door between defendant and the victims, and then the magistrate left the bench. There had been no argument allowed on the matter, and the section 422 charges were never discussed; it was not proper to dismiss just because the magistrate felt the case was overcharged. Defense counsel noted that he had tried to argue the section 422 charges, but the magistrate did not think it was necessary.
The superior court ruled, “As it relates to the 245, [the magistrate] didn’t put factual findings on the record insofar as he thought it was insufficient that the knife hit the door and I think a tip when through the door. And it was his finding that that was not sufficient facts to justify a holding on the 245. So that’s sustained. [¶] And as to the 422, I’m going to deny the motion. Well, let’s just put it this way: As to all three [sic] counts, I’m denying the motion to reinstate.” The prosecutor asked why the motion was being denied on the section 422 charges. The court responded, “[The magistrate] did not see the need for argument, and I think the transcript is sufficient.”
The People filed a timely notice of appeal under the authority of section 1238, subdivision (a)(9).
II
ANALYSIS
The People contend in this appeal that there was sufficient cause to believe defendant was guilty at the preliminary hearing to hold defendant to answer on all four charges in the complaint.
“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.)
Section 871.5 allows the People to seek review of the magistrate’s decision in the superior court. That section 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 purpose of the statute is to decrease the number of refilings of felony complaints when the dismissal by a magistrate was based upon a legal rather than a factual ruling. (People v. Superior Court (Feinstein) (1994) 29 Cal.App.4th 323, 331.)
“In reviewing the court’s denial of the prosecution’s section 871.5 motion to reinstate the charge, we disregard the ruling on the motion and directly examine the magistrate’s decision to dismiss at the preliminary hearing.” (People v. Plumlee (2008) 166 Cal.App.4th 935, 938-939.)
“We review the magistrate’s legal conclusions de novo, but are bound by any factual findings the magistrate made if they are supported by substantial evidence. If the magistrate makes no controlling findings of fact, we review the record independently. If, in carrying out an independent review, we determine that the evidence supplied a rational ground for holding the defendant to answer, we must reinstate the charge. [Citation.]” (People v. Plumlee, supra, 166 Cal.App.4th at p. 939, citing People v. Slaughter (1984) 35 Cal.3d 629, 639-640.) “To the extent the magistrate’s decision rests upon factual findings, ‘[w]e, like the superior court, must draw every legitimate inference in favor of the magistrate’s ruling and cannot substitute our judgment, on the credibility or weight of the evidence, for that of the magistrate.’ [Citation.]” (People v. Massey (2000) 79 Cal.App.4th 204, 210.)
The People contend that review of the magistrate’s decision should be independent because no factual findings were made by the magistrate. Defendant argues that the magistrate made two factual findings: (1) the door was closed and was between defendant and Lopez and Fallen at the time he used the knife; and (2) there was no evidence that any more than the tip of the knife at most went through the door.
Here, we agree with defendant that the magistrate did make factual findings that the door was closed and that only the tip of the knife went through the door, and we accept such factual findings as true. Otherwise, we independently review whether the legal conclusion that this was not assault with a deadly weapon and with force likely to cause great bodily injury. As for the section 422 charges, there were no factual findings; thus, we review those charges independently. Within that purview, “a decision of the magistrate dismissing charges, absent findings of fact, is erroneous as a matter of law if the evidentiary record discloses a rational basis for believing the defendant guilty of the charged crime.” (People v. Slaughter, supra, 35 Cal.3d at p. 642.)
A. Assault With a Deadly Weapon and With Force Likely to Cause Great Bodily Injury
An “assault” is “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” (§ 240.) A person violates section 245, subdivision (a)(1) by committing an assault upon the person of another with a deadly weapon other than a firearm or by means of force likely to produce great bodily injury. (§ 245, subd. (a)(1); People v. Winters (2001) 93 Cal.App.4th 273, 275.)
“A ‘deadly weapon’ within the meaning of Penal Code section 245, subdivision (a) is any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce[] death or great bodily injury.” (In re Jose R. (1982) 137 Cal.App.3d 269, 275-276.) A knife, which is not considered a deadly weapon as it is not designed to be primarily used as a weapon, may be found to be a deadly weapon if it is capable of being used in a dangerous or deadly manner and its possessor intended to use it as a weapon under the circumstances. (See People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029.) “One may commit an assault without making actual physical contact with the person of the victim; because the statute focuses on use of a deadly weapon or instrument or, alternatively, on force likely to produce great bodily injury, whether the victim in fact suffers any harm is immaterial. [Citation.]” (Id., at p. 1028.)
Here, the complaint alleged both theories. Hence, we must determine whether the magistrate properly concluded based on the facts presented that defendant’s conduct did not have “the capability and probability of inflicting great bodily injury under either a ‘deadly weapon’ theory or a ‘force likely’ theory.” (People v. Aguilar, supra, 16 Cal.4th at p. 1037.) The analysis under either theory is the same. (Ibid.)
Under either theory, we believe the actions by defendant supplied at least a “rational ground for holding the defendant to answer....” (People v. Plumlee, supra, 166 Cal.App.4th at p. 939.) There was credible evidence presented that supported the inference that defendant committed assault with a deadly weapon or with force likely to cause great bodily injury. Based on Lopez’s testimony at the preliminary hearing, defendant kicked open the double doors to the bedroom and was yelling profanities at her and Fallen. Defendant then ran to the kitchen and retrieved a “big” knife. Defendant ran back to toward the room holding the knife up over his shoulder. Lopez immediately closed the doors. Defendant kicked at the door, but the door did not open. Both Lopez and Fallen held the doors closed.
Defendant was stabbing at a door. The magistrate found that the tip of the knife went through the door. This evidence established that defendant was using significant force. If Lopez and Fallen had not been holding the door shut, defendant would have been capable of entering the room. Certainly, the way that defendant was wielding the knife when Lopez closed the door, he could have caused great bodily injury, and the knife was being used as a deadly weapon. As previously noted, “[o]ne may commit an assault without making actual physical contact with the person of the victim.... ” (People v. Aguilar, supra, 16 Cal.4th at p. 1028.)
Fallen testified at trial that the double doors never moved and that he did not see the knife come through the door, but he had told police that night that defendant had been kicking at the door. He also told police officers that he saw the knife come through the door. The magistrate clearly rejected Fallen’s preliminary hearing testimony that the knife did not come through door, as it made a factual finding that the tip of the knife did pierce the door. The evidence presented would lead a person of ordinary caution or prudence to entertain a strong suspicion of defendant’s guilt, as it could be inferred that Lopez and Fallen were using the doors for protection, and defendant intended to harm them. Had the door not been held closed by Lopez and Fallen, the evidence established defendant would have entered the room with the knife.
We note that at the preliminary hearing, the People did not have to prove the facts beyond a reasonable doubt. “[T]he burden on the prosecution before the magistrate is quite distinct from that necessary to obtain a conviction before a judge or jury. ‘Of course, the probable cause test is not identical with the test which controls a jury.... The jury must be convinced to a moral certainty and beyond a reasonable doubt of the existence of the crime charged in the information and of every essential element of that crime. But a magistrate conducting a preliminary examination must be convinced of only 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. [Citations.]’” (People v. Slaughter, supra, 35 Cal.3d at p. 637.) We believe that enough evidence was presented at the preliminary hearing to permit the People to present the charge to a jury.
Based on these facts, there was at least a rational ground for holding defendant to answer on the charges of assault with a deadly weapon or with force likely to cause great bodily injury against both Fallen and Lopez. As such, the superior court erred by refusing to reinstate the complaint on the two assault with a deadly weapon and with force likely to cause great bodily injury charges.
B. Criminal Threats
Section 422 states in pertinent part, “Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement... is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety....”
At the preliminary hearing, Lopez could not remember what defendant said while he was stabbing the door because she was screaming. Fallen testified that he did not recall defendant threatening him, but he also testified he was “wasted” and could not remember much of that night. Officer Bee testified that Lopez told him that night that, while he was stabbing and kicking at the door, defendant yelled, “I’m gonna kill you.”
The magistrate did not make any findings as to the credibility of witnesses. We cannot assess the credibility of witnesses on appeal. (See People v. Letner and Tobin (2010) 50 Cal.4th 99, 166 [“on appeal we do not judge the trustworthiness of witnesses”].) We also cannot assume that the magistrate resolved any of the factual disputes or passed upon the credibility of witnesses. (People v. Slaughter, supra, 35 Cal.3d at p. 638.) Here, however, none of the witnesses were conclusively impeached, and the evidence was not inherently implausible. (See Cooley v. Superior Court (2002) 29 Cal.4th 228, 258.) Lopez stated at trial that she did not remember what defendant said while he was stabbing the door. Fallen could not recall that defendant said anything while he was at the door. Officer Bee’s testimony that on the night of the incident Lopez stood with the knife at the door and said he was going to kill either Lopez or Fallen or both was not impeached.
Cooley involved the commitment of the defendant as a sexually violent predator. The California Supreme Court applied the same standard to involuntary commitments as a sexually violent predator as it does for review of probable cause at a preliminary hearing. (Cooley v. Superior Court, supra, 29 Cal.4th at p. 257.) However, in that case, the court refused to make any credibility determinations on appeal, as there were two competing experts presented in the trial court who both applied incorrect legal standards. The court was not in the position to make a finding on the complex evidence presented in the case. (Id. at pp. 260-261.) This case differs from Cooley in that here the witnesses were not conclusively impeached.
The element that defendant willfully threatened great bodily injury or death to Lopez and Fallen was supported by the evidence. The statement that defendant was going to kill them was certainly unequivocal and immediate, as he made the statements as he was kicking and stabbing the door. Moreover, it was reasonable for Lopez and Fallen to be in fear of their lives based on the statement and actions by defendant. The evidence need only have established “a rational basis for believing the defendant guilty of the charged crime.” (People v. Slaughter, supra, 35 Cal.3d at p. 642.) Officer Bee’s testimony provided a rational basis to believe that defendant threatened both Lopez and Fallen.
Further, the evidence established that Lopez and Fallen were in sustained fear of defendant. The “sustained fear” element of section 422 has been interpreted to mean “a period of time that extends beyond what is momentary, fleeting, or transitory.” (People v. Allen (1995) 33 Cal.App.4th 1149, 1156 [15 minutes between the time of the threat and the arrest of the defendant was sufficient to support sustained fear of the victim]; In re Ricky T. (2001) 87 Cal.App.4th 1132, 1139-1140 [sustained fear element of section 422 cannot be supported by momentary fear].)
At the preliminary hearing, Lopez testified she was afraid to the leave the room, feared for the safety of her children and immediately called the police. Fallen testified at the hearing that he was not afraid and was never threatened by Fallen, but also testified that he feared for his children. Officer Bee testified that when he arrived at the scene, Lopez and Fallen seemed scared and shaken up. They appeared to be in fear for their lives. No evidence was presented that impeached Officer Bee’s observations. There was therefore at least some rational ground for assuming that Lopez and Fallen were in sustained fear of defendant to support the section 422 charges.
The evidence presented at the preliminary hearing established there was sufficient cause to believe that defendant had made criminal threats to Lopez and Fallen within the meaning of section 422. The superior court erred by denying the People’s motion to reinstate the complaint. The evidence presented at the preliminary hearing provided a rational basis to have a strong suspicion that defendant was guilty of assault with a deadly weapon or by means of force likely to produce great bodily injury against both Fallen and Lopez, and making terrorist threats against Fallen and Lopez.
III
DISPOSITION
The order denying the People’s motion to reinstate the complaint is reversed. The trial court shall reinstate all four charges in the complaint.
We concur: RAMIREZ P.J., CODRINGTON J.