P. v. Covert
Filed 1/23/13 P. v. Covert CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
CARA WILLIAMS COVERT,
Defendant
and Appellant.
E054504
(Super.Ct.No.
INF1101081)
APPEAL from the Superior Court of
County. William S. Lebov,
Judge. (Retired judge of the Yolo Super.
Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal.
Const.) Affirmed.
Leonard J. Klaif, under appointment
by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant
Attorney General, and James D. Dutton and Donald W. Ostertag, Deputy Attorneys
General, for Plaintiff and Respondent.
Defendant was charged four separate
times with various charges for her involvement in the murder of a man by her
boyfriend, and her first three cases were dismissed. Defendant was finally charged with being an
accessory after the fact pursuant to Penal Code section 32.
grounds that the charges of violating section 32 had already twice been
dismissed pursuant to section 1387. Her
motion was denied. She pleaded guilty
and was sentenced to three years in state prison.
Defendant claims on appeal that the
trial court erred by refusing to dismiss the charges under section 1387,
subdivision (a).
I
PROCEDURAL BACKGROUND
Defendant was charged in a felony
complaint with a violation of section 32, being an accessory after the fact,
based on her actions of harboring, concealing, or aiding Dale Christopher
Farquhar in the murder of Larry Roger Fisk.
Her motion to dismiss the complaint pursuant to section 1387,
subdivision (a) was denied by the trial court.
Defendant entered a guilty plea to
the violation of section 32. She was
sentenced to the upper term of three years.
However, she was immediately released and ordered to report to the
parole office because she had 1,104 days of custody credits.
Defendant filed a
and her request for a certificate of probable cause was granted.
II
FACTUAL BACKGROUND
At 2:00 p.m., on November 14, 2009,
Fisk was found dead at an apartment complex located on Ashurst Court in Palm
Springs. He had been shot in the back of
the head. Around the same time, a person
found a duffle bag containing items belonging to Fisk in the nearby
desert. Defendant’s name and cellular
telephone number were in the bag. The
police located defendant and her boyfriend, Farquhar, in another apartment at
the Ashurst Court complex. Farquhar
claimed that on November 13 he had smoked marijuana and fallen asleep. He woke up when he heard someone say,
“[D]on’t do that.†He discovered Fisk on
top of defendant. Farquhar claimed he
did not recall what had happened next.
Defendant told police she had met
Fisk at a bar and that one afternoon he had followed her to her apartment. He tried to kiss her outside the
apartment. Defendant was frightened and
told Fisk not to kiss her. Farquhar
emerged from their apartment and shot Fisk in the back of the head. Defendant claimed she then blacked out. She later told the police she saw Farquhar
grab a sheet from their apartment and heard him drag Fisk to another
apartment. Covert drove Farquhar to
another location, where they disposed of Fisk’s duffle bag.
III
SECTION 1385
Defendant contends that the
magistrate erred in denying her motion to dismiss the case for violation of the
two-dismissal rule of section 1387.
A.
According to the judicially noticed
documents,
No. INF067359 with a felony violation of section 32. Defendant was arraigned on the charges on
November 19, 2009. The preliminary
hearing was conducted, and defendant was held to answer. On May 26, 2010, the People brought a motion
to dismiss pursuant to section 1385, and the case was dismissed. The parties agree that this was the first
dismissal of the section 32 charge.
On May 21, 2010, the People filed
another complaint against defendant in case No. INF10001033, again for a
violation of section 32, and a warrant was issued for defendant’s arrest. However, prior to defendant’s arraignment,
the People amended the complaint to allege a violation of section 187,
subdivision (a), and a principal-armed allegation (§ 12022, subd. (a)(1)). On June 10, 2010, defendant was arraigned on
the amended complaint and taken into custody.
On November 1, 2010, the magistrate “discharged†the violation of
section 187. However, on the court’s own
motion, it orally amended the complaint as a violation of section 32. The court found sufficient evidence to hold
defendant to answer on the section 32 violation.
The magistrate ordered that
defendant be arraigned on the information on November 15, 2010. Defendant was remanded to custody. However, at the time of the information
arraignment, the People had not filed an information on the section 32
charge. There was an oral motion by the
People to file a new felony complaint, which was granted. The details of this hearing have not been
provided in the record. However, the
minute order states that a section 32 charge was dismissed pursuant to section
1385.
On that same day, November 15, 2010,
the People filed a complaint in case No. INF10002505 charging defendant with
violating section 187, subdivision (a), and section 12022, subdivision
(a)(1). Defendant filed a motion to
dismiss pursuant to section 1387, but the motion was denied.
The preliminary hearing was held on
May 11, 2011. The magistrate concluded
that there was insufficient evidence of a violation of section 187 and amended
the complaint to a violation of section 32.
Defendant was held to answer on the section 32 violation, and she
remained in custody. An information was
filed on May 24, 2011, but the People charged her with a violation of section
187, subdivision (a), and she was arraigned on the information. Defendant brought a motion to dismiss
pursuant to section 1387. The motion was
granted. The case was dismissed pursuant
to “section 871†on June 10, 2011. The
complaint in this case charging a violation of section 32 was then filed on the
same day.
Defendant filed her
prior dismissals of the section 32 charge.
The charge of murder was not the “same offense†as an accessory after
the fact, as that term is used in section 1387.
Further, the People argued that the magistrate misused its authority
under section 871 by ordering that defendant be held to answer under section
32, when the People did not move to amend the complaint.
On June 23, 2011, the matter was
heard by the trial court. The trial
court stated that in case No. INF067359, a complaint was filed charging
defendant with violating section 32 and that it was dismissed. The parties agreed this was the first
dismissal of the section 32 violation.
The trial court then considered that
a new complaint was filed in case No. INF10001033. It initially charged a violation of section
32 but was amended to charge a violation of section 187 with a section 12022,
subdivision (a)(1) allegation. The
parties agreed this was accurate.
Defendant argued that in case No.
INF10001033, the magistrate found insufficient evidence of a section 187
charge, and under its authority pursuant to sections 871
name="_ftnref6" title="">[6] ordered that she be held to answer under
section 32. The trial court found the
People did not request such an amended section 32 charge.
Defendant argued that the magistrate
did not dismiss under section 871 but rather, under its authority pursuant to
section 872, found a public offense had been committed and held her on that
charge. Defendant referred to the
preliminary hearing on November 1, 2010, that the court made the finding that
there had been a violation of section 32.
The People disagreed and relied upon
People v. Traylor (2009) 46 Cal.4th
1205 (Traylor). They argued that the dismissal of a violation
of section 187 in case No. INF10001033 was not a dismissal of section
32. Defendant attempted to distinguish
issue was whether there could be filing of a lesser offense when the greater
offense has been dismissed.
Defendant also argued there was a
third filing in case No. 10002505, in which defendant was not held to answer on
the section 187 charge, and the court amended the complaint to hold her on the
section 32 charge. The People did not
file an information within the required 15 days, and it was dismissed. Defendant argued that this was harassment and
fell within section 1387. The People
were harassing her to get the murder charge.
The People responded that defendant
was twice charged with murder because they felt that the evidence supported the
charge. The People stated, “[T]here’s no
legal authority . . . that says if a defendant suggests to
a magistrate to hold to a lesser offense, and the magistrate then does that,
then that counts as a dismissal of the lesser offense.â€
The trial court ruled as follows:
“I’m going to make the ruling, and
I’m going to find that regarding case No. INF INF10001033, there’s a holding
order on the PC 32. It’s not at the
request of the District Attorney, and the complaint had not been amended to add
a PC 32 before the holding order.
“In INF 10002505, again, a
preliminary hearing was held, was on 187.
Again, the PC 32 indication from the court, not this court but a
different court, as to a holding order was not at the request of the District
Attorney. I find that there was only one
dismissal, and that prosecution can go forward.
“Going back to INF10001033, . . . it
was not a dismissal. It was an
elimination or deletion of a count at the discretion of the District
Attorney. Did not involve the judicial
decision to dismiss on the motion of the District Attorney because of some
failure to bring the case in a timely hearing or for lack of evidence presented
at preliminary hearing. In this court’s
judgment, there was only one dismissal, and that the PC 32 filing that’s
present before the court is an appropriate filing. So motion to dismiss is denied.â€
B.
Under section 1387, subdivision (a),
“[m]isdemeanor prosecutions are subject to a one-dismissal rule; one previous
dismissal of a charge for the same offense will bar a new misdemeanor
charge. Felony prosecutions, in
contrast, are subject to a two-dismissal rule; two previous dismissals of
charges for the same offense will bar a new felony charge.†(Burris
v. Superior Court (2005) 34 Cal.4th 1012, 1019.) “Section 1387 implements a series of related
public policies. It curtails prosecutorial
harassment by placing limits on the number of times charges may be
refiled. [Citations.] The statute also reduces the possibility that
prosecutors might use the power to dismiss and refile to forum shop. [Citations.]
Finally, the statute prevents the evasion of speedy trial rights through
the repeated dismissal and refiling of the same charges. [Citations.]â€
(Id. at p. 1018.)
In Traylor, supra, 46
Cal.4th 1205, the People filed a complaint against the defendant for a felony
violation of vehicular manslaughter with gross negligence for hitting a
nine-year-old boy with his vehicle. (
determined that there was not enough evidence for the charge but found there
would be enough evidence to charge defendant with a misdemeanor violation of
negligent vehicular manslaughter. The
People were ordered by the magistrate to file a misdemeanor complaint, but they
failed to do so. As such, the case was
dismissed pursuant to section 871. (
complaint was filed charging the misdemeanor, and the magistrate dismissed it
pursuant to section 1387, subdivision (a).
The Court of Appeal upheld the dismissal, finding that “the prior
dismissal of a felony complaint bars further prosecution for the same conduct
as a misdemeanor.†(Traylor, at p. 1211.)
The California Supreme Court granted
review. It approved of language in two
of its prior cases that when two crimes have the same elements, they are the
“same offense†for purposes of section 1387.
(Traylor, supra, 46 Cal.4th at
p. 1212.) It noted that “[s]ection 1387
limits, in most instances, the number of times prosecution ‘for the same
offense’ may occur after prior complaints have been dismissed. Dismissals under section 871 are among those
that count against later prosecutions.
Thus under section 1387(a), as applicable to the facts of this case,
‘[a]n order terminating an action pursuant to . . . Section . . . 871 . . . is a
bar to any other prosecution for the same offense if it is a felony or . . . a
misdemeanor charged together with a felony and the action has been previously
terminated . . . or if it is a misdemeanor not charged together with a felony .
. . .†(Id. at pp. 1211-1212.}
The court concluded section 1387 did
not apply to bar the charging of the lesser included offense in that case after
the magistrate determined that there was insufficient evidence of the charged
felony. It held, “[W]hen the People
initially file a felony complaint, which is then dismissed by a magistrate on
grounds there is sufficient evidence only to support a lesser included offense,
the subsequent filing of a second complaint containing such a reduced
misdemeanor charge, comprising fewer than all the elements of the previously
dismissed offense, is not barred by section 1387(a).†(Traylor,
supra, 46 Cal.4th at p. 1219, fn.
omitted.)
The importance of
construed section 1387’s use of the language “same offense.†It rejected that “section 1387(a) should
apply to all charges arising from the same
conduct or behavior of the defendant,†finding that the statutory language
“belies such a necessarily broad construction.â€
(Taylor, supra, 46 Cal.4th at
p. 1213, fn. 6.)
Clearly, under Traylor the People did not charge the same offense (a violation of
section 32) more than once. The crime of
murder and accessory after the fact are separate felony crimes. The People filed the first complaint as a
section 32 charge, and it was dismissed.
In the next two cases, defendant was charged with violations of section
187, a separate and distinct charge from section 32. The magistrate in both those cases found
insufficient evidence of the section 187 charges. As will be discussed, post, at that point, under section 871, the magistrate should have
dismissed the charges and did not have the authority to force the People to
file an information under section 32 without the People’s consent. Hence, the filing of the complaint in this
case charging defendant with a violation of section 32 constituted the second
filing of the “same offense,†and the magistrate did not err by refusing to
grant defendant’s section 1387 motion to dismiss.
As for the filing of the complaint
in case No. INF10001033, defendant argues, without citation to proper
authority, that since the People originally filed the complaint against her as
a section 32 charge, that the charge does not “disappear†and is counted as a
dismissal when they amended the complaint to charge a violation of section 187.
also refers to Ramos v. Superior
Court (1982) 32 Cal.3d 26 (Ramos)
for the proposition that the filing
of the complaint in case No. INF10001033, charging defendant with a violation
of section 32 constituted an action, and the People’s amendment of the
complaint to eliminate the charge, constituted a dismissal of the section 32 charge.
Ramos
involved two prior dismissals of a special circumstance allegation by two
separate magistrate judges. (
The prosecution, after the second dismissal, filed an information in the
superior court alleging the special circumstance allegation. (Ibid.) The California Supreme Court concluded that
there two dismissals pursuant to section 1387.
The People tried to argue that filing the information under its
authority pursuant to section 739 (which allows the People to file charges in
an information based on the evidence shown at the preliminary hearing but not
necessarily named in the commitment order) does not constitute another
prosecution under section 1387. (
The California Supreme Court
rejected that the claim. It concluded,
“[T]he district attorney’s reinstatement of the special circumstance allegation
pursuant to section 739 was an ‘other prosecution for the same offense’ which
was barred under section 1387 because the allegation had already been dismissed
twice under section 871.†(
Defendant asks us to expand this
reasoning to the situation in this case, where the People file a complaint
alleging the same allegation that had already been dismissed once, here the
violation of section 32, and that the amendment of the complaint removing the
charge constitutes a dismissal of the original charge of section 32.
Ramos
involved a significantly different factual scenario. We reject that the reasoning in
case No. INF10001033, an action pursuant to section 32 was not barred under section
1387 and was therefore not subject to dismissal under that section, unlike the
situation in Ramos. Further, in Ramos, the prosecution sought to have the filing of the information
not considered a “prosecution†under the meaning of section 1387 to avoid
dismissal of the action. Essentially,
the prosecution argued that section 739 was exempt from section 1387. (Ramos,
supra, 32 Cal.3d at pp. 34-35.) No
such circumstances exist in this case.
Moreover, as set forth,
of a charge when it has already been twice dismissed. The action of the People filing a complaint
and then amending the complaint to eliminate that charge (prior to the
defendant being arraigned on the charge and prior to the defendant seeking to dismiss
the charge) simply cannot be considered a dismissal within the meaning of
section 1387, and Ramos does not so
hold.
Defendant also appears to contend
that the magistrate had the authority to amend the complaint to hold her to
answer on the section 32 violation, and the People’s failure to file an
information in case No. INF10001033, and the dismissal in case No. 10002505,
constituted dismissals of the section 32 charge. Defendant has provided no authority on appeal
to support her claim that the magistrate had the power to amend the complaint,
rather than dismiss it, and then force the People to file an information on
this new crime.
Section 871 provides in pertinent
part: “If, after hearing the proofs, it
appears either that no public offense has been committed or that there is not
sufficient cause to believe the defendant guilty of a public offense, the
magistrate shall order the complaint dismissed and the defendant to be
discharged . . . .â€
title="">[8]
In People v. Superior Court (Feinstein)
(1994) 29 Cal.App.4th 323, a magistrate reduced a straight felony (not a
wobbler offense) to a similar misdemeanor violation, which was a different
crime. The prosecution petitioned the
appellate court for a writ of mandate, allowing it to challenge the magistrate’s
authority to change a straight felony to a different misdemeanor. (Id. at
pp. 327-328.) The Court of Appeal held
that the magistrate did not have the authority to reduce the felony to a
different misdemeanor offense on a straight felony. (Id. at
p. 330.) It held, as a consequence, that
“[i]f the magistrate concludes the evidence is insufficient to hold the
defendant for trial in the superior court as charged, he or she must dismiss
the complaint pursuant to section 871.
[Citation.]†(
In People v. Williams (2005) 35 Cal.4th 817, the California Supreme
Court interpreted Feinstein’s holding
as follows: “ . . .
a magistrate’s order purporting to ‘reduce’ a straight felony charge to a
misdemeanor is not authorized by section 17(b)(5)[
name="_ftnref9" title="">[9]]
and, thus, constitutes a dismissal of the felony charge within the meaning of
section 871.†(Id. at p. 829.) In
serious question whether the magistrate could hold the defendant and require
the prosecution to file a complaint on the lesser misdemeanor charge before
dismissing the felony complaint. It
noted, “After the magistrate determined that probable cause for felony charges
was lacking, the People were entitled to evaluate the evidence for themselves
to determine whether they should exercise their statutory right to file a
supra, 46 Cal.4th at p. 1215, fn. 8.)
Here, the magistrate lacked the authority
on his own motion to force the People to file a section 32 charge against
defendant once he concluded that the evidence did not support a violation of
section 187. Once he found that the
murder charge was not supported by the evidence, he should have dismissed the
action. Hence, any action by the People
after the dismissal ‑‑ failing to file an information in
case No. INF10001033 or filing an information charging him with section 187 in
case No. 10002505 and having it dismissed ‑‑ did not
constitute a dismissal of a section 32 charge.
actions of the magistrate, as the proper course of action was dismissal of the
charge of violating section 187. Even
though the magistrate found the evidence supported a violation of section 32,
the People were not bound by that determination, and it should not be counted
as a dismissal within the meaning of section 1387. It must be remembered that the charging
function in a criminal case is within the sole province of the executive
branch, which includes the state’s district attorneys. (People
v. Mikhail (1993) 13 Cal.App.4th 846, 854-855.)
Defendant additionally contends that
if the People were displeased with the magistrate’s decision, they should have
filed a request in the superior court to reinstate the complaint on the murder
charge pursuant to section 871.5.
name="_ftnref11" title="">[11] While we may agree with this proposition, it
did not foreclose the People from refiling the section 187 charge or impact the
determination under section 1387.
Based on the foregoing, the People
could file a section 32 charge against defendant in this case. Therefore, the trial court properly denied
defendant’s section 1387 motion.
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
We concur:
HOLLENHORST
Acting
P. J.
McKINSTER
J.
name="_ftn1" title=""> [1] All
further statutory references are to the Penal Code unless otherwise
indicated.
draw the facts from the probation report as relied upon by both parties.
