Glasgow v. Super. Ct.

Filed 8/13/08 Glasgow v. Super. Ct. CA3

NOTTOBEPUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

----

Petitioner (defendant) Raymond Douglas Glasgow seeks a writ of mandate or prohibition commanding respondent superior court to grant his Penal Code section 995 motion challenging a felony charge of elder or dependent adult abuse.(Pen. Code,  368, subd. (b)(1); further undesignated section references are to the Penal Code.) Defendant raises two issues. First, he claims there is insufficient evidence of one element of the charge, i.e., that the act was committed under circumstances or conditions likely to produce great bodily harm or death. (Ibid.) Second, he claims the magistrate did not understand his discretion under section 17 to reduce the offense to a misdemeanor. We conclude that although there is sufficient evidence to support the charge, it does not appear from the record the magistrate exercised his discretion under section 17. Accordingly, we shall issue a writ of prohibition.

BACKGROUND

A. Evidence

At the preliminary hearing, defendant was bound over on the charge of elder or dependent adult abuse.^[1] The relevant facts are taken from that hearing.

The only witness to testify was the alleged victim, defendants 69-year-old mother. She testified that on the day of the incident, the phone rang and she answered it. The caller was defendants cousin, who asked to speak to defendant. The victim did not initially give defendant the phone because she was unhappy that defendants cousin called frequently. When she eventually handed the phone to him, he snatched it. She chastised defendant about snatching the phone from her and demanded it back.

Defendant slammed the phone against the victims chest and pushed her. Defendant was aware the victim had a pacemaker, and he slammed the phone into her in the area of the pacemaker. She fell backwards but did not fall on the ground. According to the victim, when defendant slammed the phone against her chest, it hurt her heart.

The victim began having trouble breathing and had to sit down to rest. Her heart was beating rapidly for five or 10 minutes afterwards, and she was afraid of having a heart attack. She explained: I called my other son and told him that he pushed me and he hurt my heart and it was hurting. She described the pain as a six on a scale from one to 10, and indicated it lasted for two days. She told police shortly after the attack that she did not need medical attention and did not seek medical care.

B. Magistrates Ruling and Subsequent Proceedings

After the evidence was presented, defendants counsel stated: I suggest to the Court this is a case that ought to be 17d.

The magistrate responded: The problem is, there are two sections in 368, lets see which one we have. 368(b)(1). The testimony is we have a woman who is 69 years old with a heart condition. She had previous surgery and now has a pacemaker. She testified that the defendant shoved her in the chest. As a result of that, she felt pain in her heart. Her heart started beating rapidly.

So, in view of her age and medical condition, I would have to say that this is, at a minimum, something that could -- was harm under circumstances where there could be great bodily injury to the victim. And, in other words, her health is endangered. So I -- that section isnt 17-able. [] So, because of that, Im going to hold the defendant to answer. I find reasonable and probable cause to believe that a felony violation of 368(b)(1) of the Penal Code occurred . . . . Also reasonable and probable cause to believe that the defendant is guilty thereof.

Defendant filed a section 995 motion in the trial court in which he challenged the evidence supporting the charge and claimed the magistrate did not understand his discretion to reduce the offense to a misdemeanor pursuant to section 17. The trial court rejected both claims at a hearing on April 21, 2008.

C. Petition for Writ of Prohibition

On May 2, 2008, defendant filed a timely petition for writ of mandate or prohibition in this court. At our request, the Attorney General filed written opposition on June 2. Defendant filed a reply on June 10. On June 12, this court advised the parties that it was considering issuing a peremptory writ in the first instance and that any further opposition was to be filed on or before June 23. The Attorney General did not file further opposition. On July 2, defendants counsel filed a request for a stay of further proceedings in the trial court. On July 3, this court issued a stay.

DISCUSSION

I

Sufficiency of the Evidence

Defendants section 995 motion alleged that he was committed without reasonable and probable cause and that the information must therefore be set aside. ( 995, subd. (a)(2)(B); see also  871, 872.) Reasonable and probable cause (Pen. Code, 995 and 999a) and the synonymous term sufficient cause (Pen. Code, 871 and 872) mean such 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 [citation]. [Citation.] [] To withstand scrutiny when attacked on the ground of evidentiary sufficiency, it must appear some showing of the existence of each element of the charged crime was made at the preliminary examination. The showing may be made by means of circumstantial evidence supportive of reasonable inferences. [Citation.] The level of proof need not be sufficient to support a conviction. [Citation.] Indeed, every reasonable inference that may be drawn from the evidence must be drawn in favor of the information. (Ortega v. Superior Court (1982) 135 Cal.App.3d 244, 256, fn. omitted.) Further, [w]e are not at liberty to select from available inferences, provided they are of course reasonable inferences as explained above. (Id. at p. 257.)

The trial court does not make credibility determinations when considering a section 995 motion; the magistrate who presided at the preliminary hearing is the finder of fact. (People v. Laiwa (1983) 34 Cal.3d 711, 718, superseded by statute on another ground as stated in People v. Trujillo (1990) 217 Cal.App.3d 1219, 1223.) Accordingly, we directly review the ruling of the magistrate holding defendant to answer. (People v. Superior Court (Bell) (2002) 99 Cal.App.4th 1334, 1339.)

Defendant contends there was insufficient evidence the offense was committed under circumstances or conditions likely to cause great bodily harm or death. (See Pen. Code, 368, subd. (b)(1).)^[2] According to the evidence at the preliminary hearing, the victim was 69 years old, had prior heart trouble, and had a pacemaker. Her heart started beating rapidly after defendant pushed the phone into her near her pacemaker, she had trouble breathing, and she had to sit down. Moreover, she experienced pain from the incident for a couple of days afterwards. Under the circumstances, it is reasonable to infer that defendants attack could well have caused serious injury to the victim, and it was fortunate she did not fall or sustain lasting injury or heart attack.

Defendant points to some inconsistencies in the victims testimony. For example, she initially indicated he pushed her and only testified that he slammed the phone into her after her recollection was refreshed. But the magistrate made no express factual determinations indicating a particular portion of the victims testimony was not credible, and reasonable inferences are drawn in favor of the charge. Accordingly, we conclude there is ample evidence to support the finding of probable cause.

II

Discretion under Section 17

When a statute makes an offense punishable by imprisonment in the state prison or by imprisonment in the county jail, the offense is a wobbler that can be punished as a felony or as a misdemeanor. ( 17, subd. (b).) At the preliminary hearing, the magistrate has authority to treat a wobbler as a misdemeanor prior to binding the defendant over on the charge. ( 17, subd. (b)(5).) The offense at issue here, elder abuse under section 368, subdivision (b)(1), is a wobbler.

Defendant complains that the magistrate did not understand his discretion under section 17 to reduce the offense to a misdemeanor. The People argue (in accordance with the trial courts ruling on the section 995 motion) that the magistrate was simply discussing why, based on the facts of this case, he was exercising his discretion not to reduce the offense from a felony to a misdemeanor.

The magistrates exercise of discretion under section 17 implicates a substantial right, and a section 995 motion provides a quick and efficient remedy to challenge a misapplication of section 17. (Jackson v. Superior Court (1980) 110 Cal.App.3d 174, 177-178.) There is, however, a presumption a court properly followed established law absent evidence to the contrary. (See, e.g., Ross v. Superior Court (1977) 19 Cal.3d 899, 913.) Consequently, we may not assume the magistrate was unaware of his discretion simply because he failed explicitly to refer to it. However, focus on the magistrates language here and its context leads us to conclude he was not aware of the discretion he possessed under section 17.

After defendants counsel asked the magistrate to exercise his discretion and treat the offense as a misdemeanor, the magistrate noted: The problem is, there are two sections in 368, lets see which one we have. 368(b)(1). The magistrate discussed the facts but then commented: So I -- that section isnt 17-able. If not for the latter comment, the magistrates discussion of the facts could reasonably be construed as explaining why he was exercising its discretion not to treat the offense as a misdemeanor. Although the magistrate cited the correct subdivision ( 368, subd. (b)(1)), he plainly stated that the section (as opposed to the offense or the crime) was not 17-able. Further, Penal Code section 368, subdivision (b)(2) provides for an additional term in the state prison if the victim suffers great bodily injury as defined in section 12022.7.^[3] The magistrate may have reviewed this part of the statute and erroneously concluded the underlying offense was a felony because of the reference to state prison.

Having concluded that the magistrate erred, we consider the remedy. The People ask us to return the case to the magistrate with instructions to exercise his discretion and determine whether the offense is a misdemeanor. Defendant claims dismissal of the information is required. Resolution of this issue requires consideration of section 995a, which provides for a remedy other than dismissal of the charges in some cases where a minor error or oversight can be expeditiously corrected without rehearing a substantial portion of the evidence.

Section 995a, subdivision (b)(1) provides: Without setting aside the information, the court may, upon motion of the prosecuting attorney, order further proceedings to correct errors alleged by the defendant if the court finds that such errors are minor errors of omission, ambiguity, or technical defect which can be expeditiously cured or corrected without a rehearing of a substantial portion of the evidence. The court may remand the cause to the committing magistrate for further proceedings, or if the parties and the court agree, the court may itself sit as a magistrate and conduct further proceedings. When remanding the cause to the committing magistrate, the court shall state in its remand order which minor errors it finds could be expeditiously cured or corrected.

The apparent failure of the magistrate to exercise his discretion under section 17 is not the type of oversight that requires the taking of additional evidence. Accordingly, upon motion by the prosecutor, the trial court may follow the procedure described in section 995a to remedy this error.

CONCLUSION

Having complied with the procedural requirements for issuance of a peremptory writ in the first instance, we are authorized to issue the peremptory writ forthwith. (See Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171.)

Let a peremptory writ of prohibition issue directing the respondent superior court to vacate its order denying petitioner Raymond Douglas Glasgows Penal Code section 995 motion. Upon motion by the prosecutor under Penal Code section 995a, no later than 10 days following the date of finality of this opinion, the court shall either: (1) remand the matter to the magistrate to exercise his discretion under Penal Code section 17; or (2) if the parties and court agree, the court may itself sit as the magistrate and exercise his discretion under Penal Code section 17. If the prosecutor does not file a timely motion under Penal Code section 995a, the trial court shall grant petitioners Penal Code section 995 motion. Upon finality of this decision, the stay previously issued is dissolved.

NICHOLSON , Acting P. J.

We concur:

RAYE , J.

ROBIE , J.

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^[1] Defendant is also charged with enhancements for a prior strike offense ( 1170.12, subd. (b), 667) and three prior prison terms ( 667.5, subd. (b)).

^[2] Penal Code section 368, subdivision (b)(1) provides: Any person who knows or reasonably should know that a person is an elder or dependent adult and who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any elder or dependent adult to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any elder or dependent adult, willfully causes or permits the person or health of the elder or dependent adult to be injured, or willfully causes or permits the elder or dependent adult to be placed in a situation in which his or her person or health is endangered, is punishable by imprisonment in a county jail not exceeding one year, or by a fine not to exceed six thousand dollars ($6,000), or by both that fine and imprisonment, or by imprisonment in the state prison for two, three, or four years.

^[3] Penal Code section 368, subdivision (b)(2) provides: If in the commission of an offense described in paragraph (1), the victim suffers great bodily injury, as defined in Section 12022.7, the defendant shall receive an additional term in the state prison as follows:
(A) Three years if the victim is under 70 years of age.
(B) Five years if the victim is 70 years of age or older.