P. v. Graham
Filed 4/25/13 P. v. Graham CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Appellant,
v.
JAMES RUSSELL GRAHAM, JR.,
Defendant
and Respondent.
E056064
(Super.Ct.No.
INF1200195)
APPEAL from the Superior
Court of
County. Thomas N.
Douglass, Jr. (retired judge of the Riverside Super. Ct.
assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal.
Const.) and Victoria E. Cameron, Judges.
Paul E. Zellerbach, District
Attorney, and Alan D. Tate, Deputy District Attorney, for Plaintiff and
Appellant.
Daniel J. Kessler, under appointment
by the Court of Appeal, for Defendant and Respondent.
Plaintiff and Appellant the People
of the State of California appeal
from the order denying their Penal Code section 871.5
defendant James Russell Graham charging him with burglary and receiving stolen
property. Defendant had already pleaded
guilty to a subsequent burglary where he was found with items taken in the
instant burglary. Defendant brought a motion to dismiss the
complaint pursuant to section 654 and
Kellett v. Superior Court (1966) 63
Cal.2d 822 (Kellett) arguing that the
People had to file all of the cases together.
The magistrate dismissed the complaint.
The People filed a motion to reinstate the complaint pursuant to section
871.5, which was denied on the grounds that the superior court lacked
jurisdiction to hear the appeal since section 654 and Kellett are not included in the statutory provisions appealable
under section 871.5.
The People claim on appeal that the
superior court erred by finding that it lacked jurisdiction to hear the motion
to reinstate the complaint and that the magistrate erred in dismissing the
complaint.
I
FACTUAL AND PROCEDURAL BACKGROUND
On October 18, 2011, defendant entered a convenience store
called the Flying J in Thousand Palms (the Flying J case). He took $300 cash that was behind the counter
and fled. Defendant was later detained
at his last known address after he was identified on surveillance video. Defendant’s person and truck were searched. A backpack was found in his possession that
contained a driver’s license and credit cards belonging to David Groode. He was also found in possession of
methamphetamine.
Prior to this, on October 13, 2011, Groode had
returned to his residence located on Cumbres Court
in Cathedral City
(the Groode case). He took a shower, and
when he emerged from the shower, a light-skinned Hispanic male was in his
bedroom. Groode chased him outside but
lost him. The man took his jeans, which
contained his cellular telephone, house and vehicle keys, driver’s license,
credit cards, and $60 in cash.
Defendant confessed to both the
Flying J burglary and the burglary at Groode’s residence. Defendant wrote an apology letter to
Groode. Groode was given back his items
after he identified them as belonging to him.
On October 20, 2011, defendant was charged in case No.
INF1102399, the Flying J case, with second degree burglary and possession of
methamphetamine. In the discovery packet
given to defendant’s counsel, the police report for the Groode burglary was
included, along with the apology letter written by defendant to Groode when he
was interrogated. On October 28, 2011, defendant pleaded
guilty to a felony violation of section 459 in the Flying J case. He was granted formal probation and released
to a 90-day inpatient drug treatment program.
On January 11, 2012, defendant was charged by a felony
complaint in case No. INF1200195, the Groode case, with one count of burglary
of an inhabited dwelling committed on October
13, 2011 (§ 459) and one count of receiving stolen property (§ 496,
subd. (a)) committed on October 18,
2011.
Prior to the preliminary hearing in
the Groode case, defendant filed a notice of motion and motion to dismiss the
complaint on the grounds that “[f]urther prosecution must be barred on the
grounds that a second prosecution violates state and federal constitutional
prohibitions against Double Jeopardy, violates Penal Code section 654, and
conflicts with the holding of Kellett v.
Superior Court (1966) 63 Cal.2d 822.â€
Defendant contended that all the facts necessary to prosecute the Groode
case were discovered at the time of defendant’s arrest in the Flying J case,
and the two cases should have been prosecuted together. Moreover, defendant believed that his guilty
plea in the Flying J case would resolve the entire matter.
The People filed opposition to the
motion. They argued that
aware of more than one offense in which the same act or course of conduct plays
a significant part. If such a
circumstance exists, then all offenses must be prosecuted in a single
proceeding. When the criminal offenses
are committed at different times and places, those crimes need not be
prosecuted in a single proceeding. The
People argued that the Groode case involved a burglary that was committed five
days prior to the Flying J burglary.
Defendant had separate criminal objectives and could have reconsidered
his course of conduct prior to the Flying J burglary. Defendant filed a reply.
A hearing was conducted on February 15, 2012, in front of a
magistrate. At the hearing, defendant
additionally argued that at the time that he pleaded guilty in the Flying J
case, the discovery included all of the information necessary for the
prosecution of the Groode case. The
People argued in opposition that Kellett applied
when either the same crime or the “immediate surrounding course of conductâ€
supporting a single criminal objective are filed under separate
complaints. The Groode case, occurring
five days prior, was a separate and distinct crime and could be prosecuted
separately even if the People knew about the crimes at the time of the Flying J
prosecution. The People admitted that
the stolen property charge should have been filed with the Flying J case, but
the burglary at the Groode home was a separate case.
The magistrate first noted that this
was a “very close issue.†There was no
question that the stolen property charge ‑‑ which
occurred on the same day as the Flying J burglary ‑‑ was
barred by Kellett. The magistrate stated that if defendant was
not in possession of the stolen property, the People would have a stronger
argument, and even with defendant’s confession, additional investigation of the
Groode burglary might have been required.
However, at the time that the Flying J case was resolved, all of the
discovery necessary to charge defendant in the Groode case was in discovery and
known to the People.
The magistrate ruled,
“ . . . I believe that while you can argue back and forth
whether the residential burglary is separated, I believe that they are tied
together because of the stolen property, and I believe this really does violate
the spirit of Kellett.†It noted that Kellett was put in place so that when a case is resolved, the
defendant need not worry about being harassed on the same set of circumstances. The magistrate concluded, “[T]he fact that
this was not an amount at the [Flying J] burglary that normally would have been
a felony and the fact that it was pled that way on a reliance that the discovery
they had was to include everything he was culpable for in that discovery, I’m
going to grant the Kellett
motion.†The case was dismissed. According to the minute order for the
hearing, the magistrate dismissed the case pursuant to section 1385 even though
the magistrate did not mention section 1385 at the hearing.
On February 24, 2012, the People
filed a motion to compel the magistrate to reinstate the complaint pursuant to
section 871.5. The People contended that
the magistrate erred by granting defendant’s “Kellett motion.†They argued
that when criminal offenses are committed at different times and at different
places, those crimes need not be prosecuted in a single proceeding. They argued that the protections of section
654 could not be stretched to protect defendant, who committed a separate
felony. They conceded that the stolen
property charge was barred by Kellett. Defendant did not file opposition because his
counsel was ill.
A hearing was conducted on March 19,
2012. The superior court met with
counsel in chambers. After the chambers
conference, the court noted that it had reviewed a memorandum on the issue that
had been submitted by court research staff.
that a dismissal pursuant to Kellett and
section 654 requires direct appeal to the Court of Appeal. As such, the trial court found that it did
not have jurisdiction to hear the motion to reinstate the complaint, and it was
denied. The superior court did not reach
the merits of the magistrate’s dismissal.
The People filed a timely
decision, citing only to the authority of section 1238, subdivision (a)(9).
II
ANALYSIS
The People contend in this appeal
that the trial court erred by denying its motion to reinstate the complaint on
jurisdictional grounds. They insist that
they were entitled to file a motion to reinstate the complaint under section
871.5 because the dismissal was pursuant to section 1385, a statutory provision
included in the language of section 871.5.
Moreover, assuming this court reaches the merits of its claim, the
magistrate erred by dismissing the complaint since the Groode burglary had a
separate objective and was committed at a different time.
Section 871.5 allows the People to
seek review of a magistrate’s decision to dismiss a complaint in the superior
court. That section provides in
pertinent part that “[w]hen an action is dismissed by a magistrate pursuant to
Section 859b, 861, 871, 1008, 1381.5,
1385, 1387, or 1389 of this code . . . 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),
italics added.) 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.)
Here, the People appeal from the
denial of its motion to reinstate the complaint under section 1238, subdivision
(a)(9), which provides that the People can appeal “[a]n order denying the
motion of the people to reinstate the complaint or a portion thereof pursuant
to section 871.5.â€
In People v. Williams (2005) 35 Cal.4th 817 (Williams), a magistrate reduced two charged felonies to
misdemeanors pursuant to section 17, subdivision (b)(5), after the preliminary
hearing. (Williams, at pp. 820.) The People
sought a motion to reinstate the complaint pursuant to section 871.5. The motion was denied on the grounds that
section 17, subdivision (b)(5) was not a dismissal subject to review under the
section. (Williams, at p. 822.) The
People filed an appeal from the denial of the motion to reinstate their
complaint pursuant to section 1238, subdivision (a)(9) and a direct appeal from
the dismissal of the felony complaint under section 1238, subdivision
(a)(8). (Williams, at p. 822,
824.) Section 1238 provides, in relevant
part: “(a) An appeal may be taken by the
people from any of the following: [¶] .
. . [¶] (8) An order or judgment dismissing or otherwise terminating all or any
portion of the action including such an order or judgment after a verdict or
finding of guilty or an order or judgment entered before the defendant has been
placed in jeopardy or where the defendant has waived jeopardy.â€
The Williams court first recognized that “[t]he prosecution in a
criminal case has no right to appeal except as provided by statute. [Citation.]â€
(Williams, supra, 35 Cal.4th
at pp. 822-823.) The reason for such
restriction is that “‘[a]ppellate review at the request of the People
necessarily imposes substantial burdens on an accused, and the extent to which
such burdens should be imposed to review claimed errors involves a delicate
balancing of the competing considerations of preventing harassment of the
accused as against correcting possible errors.’
[Citation.] Courts must respect
the limits on review imposed by the Legislature ‘although the People may
thereby suffer a wrong without a remedy.’
[Citation.]†(
The California Supreme Court then
addressed the appeal from the motion to reinstate the complaint. It first concluded that even if a superior
court denies a motion to reinstate the complaint on jurisdictional grounds, it
could review the decision. (
824.) Thereafter, it concluded that the
People were not entitled to file a motion to reinstate the complaint pursuant
to section 871.5 for review of a decision made under section 17, subdivision
(b)(5). The court made it clear that
section 871.5 is not a vehicle for reviewing all dismissals by magistrates. It agreed with a prior case that “‘[t]he plain
language of 871.5 evidences an intent to permit superior court review of
dismissal orders by magistrates when a complaint has been dismissed pursuant to
specifically enumerated statutory authority . . . .’ [Citation.]â€
(Williams, at p. 827.) The court
concluded, “The list of dismissal orders that may be reviewed pursuant to
section 871.5 does not included an order under section 17(b)(5) that a wobbler
offense that was charged as a felony is a misdemeanor, and we decline to add
it.†(Id. at p. 828.) It went on
to discuss the direct appeal from the magistrate’s order. (Id. at
pp. 830-834.)
Here, section 654 and
as statutory provisions or case law that can be appealed through a motion to
reinstate the complaint. We are bound by
the decision in Williams that section
871.5 should not be expanded to include statutory provisions that are not
included by the Legislature. (
57 Cal.2d 450, 455.) The superior court
did not have jurisdiction to hear the motion for reinstatement of the
complaint.
The People contend that the
dismissal was pursuant to section 1385, subdivision (a),
hearing that the dismissal of the complaint was pursuant to section 1385. No one discussed that section, and the People
filed their motion to reinstate the complaint based on the error in dismissing
the complaint pursuant to Kellett and
section 654.
Moreover, People v. Andrade (1978) 86 Cal.App.3d 963 contradicts that
proposition. In Andrade, defendant brought a motion to dismiss a manslaughter
charge on the grounds of the prohibition against multiple prosecution (§ 654)
and relied upon Kellett. The motion for dismissal was granted. (Andrade,
section 1238, subdivision (a)(8). (
court found that the dismissal under section 654 was erroneous as there was no
bar on multiple prosecution based on the facts of the case. (Andrade,
at p. 968.) It also rejected that the dismissal based on
the defendant’s motion was authorized under section 1385. It found, “The motion which was made and
granted was that of defendant not that of the trial court. The statute makes no provisions for a
defendant to move for dismissal.
[Citations.] Although without
expressly accepted, considered, and granted defendant’s motion to dismiss. To recognize such motion and order would
judicially enlarge the scope of Penal Code section 1385 if the dismissal were
intended in furtherance of justice. The
Legislature limited the right to initiate the use of the authority of section
1385 to the People and to the court.
Granting a defendant’s motion cannot be properly characterized as a
dismissal of charges in furtherance of justice as authorized by Penal Code
section 1385. [Citations.]†(Andrade,
Andrade
has been cited with approval in subsequent cases. (See People
v. Hernandez (2000) 22 Cal.4th 512, 522; People v. Superior Court (Meraz)
(2008) 163 Cal.App.4th 28, 54.) Here,
defendant moved for dismissal, and the magistrate granted his motion. Nothing in the record supports that dismissal
was pursuant to section 1385. Although
the clerk’s transcript cites to section 1385, the oral record contradicts the
minute order and controls. (See
766, 779.)
The People also contend that section
654 and Kellett do not authorize
dismissal of the complaint.
on acts occurring during the same course of conduct. In Kellett,
the court concluded, “When . . . the prosecution is or
should be aware of more than one offense in which the same act or course of
conduct plays a significant part, all such offenses must be prosecuted in a
single proceeding unless joinder is prohibited or severance permitted for good
cause. Failure to unite all such
offenses will result in a bar to subsequent prosecution of any offense omitted
if the initial proceedings culminate in either acquittal or conviction and
sentence.†(Kellett, supra, 63 Cal.2d at p. 827, fn. omitted.) This bar on multiple prosecutions certainly
on its face supports dismissal on these grounds.
Moreover, Andrade contradicts such a proposition since it authorized a
dismissal of a charge pursuant to Kellett. (People
v. Andrade, supra, 86 Cal.App.3d at p. 970.)
The People also rely upon
400 for the proposition that the dismissal was pursuant to section 1385. In Shrier,
the magistrate dismissed an action due to prosecutorial misconduct, and the
superior court denied the motion to reinstate the complaint. (Shrier,
dismissal could not be a subject of a motion to reinstate the complaint because
the dismissal was not listed in section 871.5.
However, the appellate court concluded that the motion for dismissal was
filed relying upon specific case law.
The appellate court noted that the case cited in the motion involved a
dismissal in part based on section 1385, which was listed in section 871.5. (Shrier,
at p. 405.)
Here, Kellett does not mention section 1385 as its basis for
dismissal. Moreover, as discussed,
1385 in the lower court, and defendant’s motion to dismiss cannot be considered
a motion to dismiss under section 1385.
Under no circumstances was this considered a motion pursuant to section
1385.
Finally, the People contend that if
the dismissal was not pursuant to section 1385, section 1387 would not bar
unlimited refilings of the same charge.
The People never sought to refile the charges in this case, so that
issue is not squarely before this court, and we need not address it.
Here, the People filed an appeal
from the superior court’s decision to deny the motion to reinstate the
complaint pursuant to section 1238, subdivision (a)(9). We affirm the superior court’s conclusion
that it did not have jurisdiction to hear the motion for reinstatement of the
complaint. The People, unlike in
appeal from the magistrate’s order. As
such, we have no means by which to review the merits of the magistrate’s
order. We must affirm the superior
court’s denial of the motion for reinstatement of the complaint.
III
DISPOSITION
We affirm the denial of the People’s
section 871.5 motion to reinstate the complaint.
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
RICHLI
Acting
P. J.
We concur:
KING
J.
MILLER
J.
name="_ftn1" title=""> * Judge
Cameron dismissed the complaint, and Judge Douglass denied the motion to
reinstate the complaint.
further statutory references are to the Penal Code unless otherwise
indicated.
