P. v. Rodriguez

 

 

 

 

 

 

 

 

 

 

Filed 6/13/13  P. v. Rodriguez CA4/3

 

 

 

 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 THREE

 

 
>

THE PEOPLE,         Plaintiff and Appellant,                        v.   MARK ANTHONY RODRIGUEZ,         Defendant and Respondent.

G046899            (Super. Ct. No. 11NF3242)            O P I N I O N

 

                        Appeal from an order of
the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, James H. Poole, Judge. 
(Retired judge of the Orange County Super.Ct. assigned by the Chief
Justice pursuant to art. VI, § 6 of the Cal.
Const.)  Request for Judicial
Notice.  Request granted.  Order affirmed. 

                        Tony Rackauckas,
District Attorney, and Brian F. Fitzpatrick, Deputy District Attorney, for
Plaintiff and Appellant.

                        Susan S. Bauguess, by
appointment by the Court of Appeal, for Defendant and Respondent.

*                      *                      *

                        The trial court issued
an order barring the prosecutor from proceeding further against defendant Mark
Anthony Rodriguez on count 1 (murder) and count 3 (firing into an inhabited
dwelling house) of the criminal complaint
filed against him.  The order was made
pursuant to Penal Code section 1387, which bars further prosecution of any
felony offense after it has twice been terminated for reasons specified in the
statute.  (All further statutory
references are to the Penal Code.)  The
prosecutor appeals, arguing the court’s order dismissing the first indictment
alleging those counts did not qualify as a termination for purposes of section
1387.  Alternatively, the prosecutor
argues he should have been afforded one additional opportunity to refile the
charges, because the court’s order dismissing the first indictment constituted
“excusable neglect” under section 1387.1. 
Finding neither contention persuasive, we affirm.

                        The court’s order
dismissing the first indictment qualified as a termination for purposes of
section 1387 because it arose out of Rodriguez’s motion to dismiss pursuant to
section 995 – one of the specified bases for a qualifying termination under
section 1387.  Although the prosecutor
did argue the court should simply dismiss the first indictment as “duplicative”
and not reach the merits of the section 995 motion, in light of the grand
jury’s subsequent return of a second indictment against Rodriguez alleging the
same counts, the court rejected that option. 
Instead, the court made clear its intention to afford Rodriguez relief >on the merits of his section 995 motion,
just as it had previously done for a different defendant who had been
separately indicted on charges arising out of the same incident.  (We grant Rodriguez’s request for judicial
notice of documents pertaining to the motion to dismiss filed by the other
defendant, Wesley Solis, as well as the court’s ruling thereon.)   Indeed, the court expressly stated its intention
was to treat the dismissal “as [a] 1387” dismissal.  And while that order was directly appealable,
the prosecutor elected not to pursue such an appeal.

                        The prosecutor’s
alternative claim, that the court’s order dismissing the first indictment
constitutes “excusable neglect” under section 1387.1, likewise fails because it
is unsupported by any showing that either the court’s decision to reach the
merits of the section 995 motion, or its ruling thereon, was actually
erroneous.

                       

FACTS

 

                        On December 11, 2008, the Orange County Grand Jury
returned separate indictments against Rodriguez and four others arising out of
an incident which allegedly occurred in June 2008.  The indictment returned against Rodriguez
charged him with counts of murder, attempted murder, shooting at an inhabited
dwelling house, robbery and street terrorism. 


                        In August 2010, one of
the other defendants charged in connection with the incident, Solis, moved to
dismiss the indictment returned against him under sections 995 and 939.71.  Judge Francisco P. Briseno granted that
motion in September of 2010.        

                        On October 8, 2010, Rodriguez also moved to dismiss
the indictment returned against him pursuant to sections 995 and 939.71.  He argued he had been illegally committed
without probable cause, and the prosecutor had withheld exculpatory evidence
from the grand jury and otherwise committed misconduct before it.  Five days later, the prosecutor presented
evidence to the grand jury and requested new indictments be returned against
the defendants charged in connection with the incident.  The grand jury issued a new indictment
against Rodriguez that same day.

                        On October 22, the date
scheduled for hearing on Rodriguez’s motion to dismiss the first indictment,
the prosecutor requested the motion be dismissed as moot in light of the new
indictment, or in the alternative, that the hearing be continued.  After Rodriguez’s counsel stated his desire
to proceed with the motion, the court – again per Judge Briseno – ordered the
hearing continued and requested further briefing on the issue of whether the
new indictment rendered the pending motion moot. 

                        At the continued
hearing, the court thanked the parties for their supplemental briefing, but
characterized the case as “procedurally . . . a mess, some of it caused by the
D.A.”  The court then explained it was
the fact the prosecutor had obtained separate indictments of each of the five
defendants, rather than a single indictment encompassing all of them, which was
the source of the procedural complication. 
Having already granted the section 995 motion filed by Solis, the court
stated it was inclined to “dismiss the four other indictments that were
originally filed, and have everybody be arraigned . . . in Department 5.”  However, the court noted it was struggling
with “whether the dismissals as to these two defendants should be treated as a
dismissal under 1387 . . . and that’s why I’m looking to see why it was five
separate indictments, because that appears to be an election by the
People.  And . . . if you agree with
that, then I think we ought to grant the defense request that this dismissal of
the first indictment be treated as one under 1387.”  The court explained that if the prosecutor
had obtained only one indictment covering all defendants charged in the
incident, and thus had joined all of them in a single case, Solis’s section 995
motion would have been easily joined by all the other defendants and resolved
consistently for all.

                        After some further
colloquy with the prosecutor, who was arguing that the court should simply
dismiss the initial indictment on the ground it was “duplicative” of the new
indictment obtained after Solis’s successful section 995 motion, without
reaching the merits of Rodriguez’s separate motion, the court made its ruling:  “You might well be right. . . .   But I’m going to take a practical approach,
and I’m simply going to dismiss the first indictment as to these two
defendants, and treat that dismissal under 1387, and I wanted to put on the
record the basic procedure that preceded this motion here today.”  The court then clarified that it agreed “the
second indictment does, in fact, supersede the first one. . . .  But I’m also finding that the dismissal of
the first indictment as to . . . these two defendants, I’m treating it as a
1387.”  The court also encouraged the
prosecutor to seek appellate review of that ruling, but there is no indication
the prosecutor did so. 

                        In November 2010,
Rodriguez was arraigned on the second indictment.  Nearly a year later, in September 2011,
Rodriguez moved to set aside the second indictment pursuant to sections 995 and
939.71.  Despite the prosecutor’s
opposition, the court (per Judge Thomas Goethals) granted the motion pursuant
to section 995, but only as to count 1 (murder) and count 3 (shooting at an
inhabited dwelling) alleged in the indictment.  


                        In November 2011, the
prosecutor filed a felony complaint charging Rodriguez with four counts,
including one count of murder and one count of shooting at an inhabited
dwelling.  Rodriguez responded by filing
a motion to preclude further prosecution of those two counts on the basis they
had been twice terminated on grounds specified in section 1387, and thus could
not be pursued.

                        The prosecutor opposed
the motion, arguing that Judge Briseno’s order 
dismissing the first indictment could not have qualified as a dismissal
pursuant to section 1387 because it was only the first dismissal of the
charges, and section 1387 applies only when charges have been twice
dismissed.  The prosecutor also asserted
that first dismissal could not be construed as a ruling on the merits of
Rodriguez’s 995 motion, because the grand jury’s return of the second
indictment prior to the court’s ruling rendered the first indictment moot and
left the court with no option other than to grant the prosecutor’s request to
dismiss it as “a duplicate pleading.” 
Finally, the prosecutor argued that Judge Briseno’s purported error in
dismissing the original indictment pursuant to section 1387 qualified as
“excusable neglect” under section 1387.1, and thus entited the prosecution to
refile the disputed charges a third time in the pending felony complaint. 

                        Judge James H. Poole,
acting as magistrate (there having been no arraignment on the felony
complaint), rejected each of the prosecutor’s arguments and granted the motion
to dismiss.  The magistrate explicitly
characterized Judge Briseno’s order dismissing the first indictment as
“unambiguous” in its intended effect, which was to qualify it as one of the two
dismissals necessary to trigger section 1387. 
As the magistrate put it, “[Judge Briseno] ultimately said not ‘no,’ but
‘hell no, this has 1387 consequences.’” 
The magistrate noted he agreed with the ruling in any case, while also
pointing out that even though the ruling had been appealable, “for whatever reason,
the district attorney’s office chose not to appeal it so that’s kind of a train
that’s passed through the station by now.” 
The magistrate rejected the prosecutor’s attempt to characterize the
ruling as “excusable neglect” which might justify an additional opportunity to
refile the charges under section 1387.1, explaining that he viewed the notion
of “excusable neglect” by a court to be restricted to essentially clerical
errors, rather than substantive legal rulings. 


 

DISCUSSION

 

>1. 
The Appeal is Properly Before This Court

                        As a preliminary matter,
we must address Rodriguez’s contention this appeal should be dismissed because
the prosecutor’s remedy following a magistrate’s dismissal ruling under section
1387 is a motion to reinstate the complaint filed in the superior court
pursuant to section 871.5, subdivision (a), rather than a direct appeal of that
ruling to this court.  Relying on >People v. Mimms (1988) 204 Cal.App.3d
471 (Mimms), Rodriguez asserts that
such a motion is the exclusive means of challenging the dismissal order.

                        The prosecutor counters
by asserting that the exclusivity rule stated in Mimms is essentially a relic of the days before unification of the
municipal and superior courts, when all “magistrates” were municipal court
judges rather than superior court judges, and when even felony cases were
processed in the municipal courts prior to arraignment on the operative
indictment or complaint.  That rule was
consistent with the general requirement that all appeals from orders and judgments
of the municipal court be filed with the appellate department of the superior
court, rather than directly with the court of appeal.

                        However, as the
prosecutor explains, “[t]o accommodate the unification, the Legislature amended
sections 1235 and 1466. 
[Citations.]  The proper appellate
procedure is no longer determined by which court (i.e., ‘inferior’ or
‘superior’) issued the order.  It is now
determined by the ‘type’ of case. 
[Citations.]  If the order
occurred in ‘an infraction or misdemeanor case,’ the proper appeal is to the
appellate division of the superior court. 
[Citation.]  If the order occurred
in a ‘felony case,’ the proper appeal is to the Court of Appeal.” 

                        We agree with the
prosecutor.  This appeal, which arises
out of an order dismissing felony counts, is properly before us.

 

>2. 
The Dismissal of the First Indictment Implicated Section 1387

                        The prosecutor’s first
contention is that, “according to the
[trial court] minutes, Judge Briseno dismissed indictment I ‘pursuant to
Penal Code section 1387.’” (Italics added.) 
Focusing solely on that specific phrasing, the prosecutor suggests Judge
Briseno’s dismissal order was based on
the authority of section 1387, and then argues that such an order would be
erroneous because “by its terms Penal Code section 1387 only applies where
felony charges have been twice dismissed” and at the time Judge Briseno made
his challenged ruling, the indictment had not yet been dismissed.

                        Judge Briseno’s ruling
was, as the magistrate later characterized it, “unambiguous.”  It is absolutely clear from the record of the
oral proceedings that Judge Briseno’s reference to section 1387 had nothing to
do with whether the statute itself would justify
an order dismissing the indictment.  To
the contrary, Judge Briseno was

actually
faced with a surfeit of justifications
for that dismissal order.  Rodriguez’s
original motion sought dismissal of the indictment based on section 995 (a
justification Judge Briseno had previously found persuasive in regard to
defendant Solis), while the prosecutor was separately arguing for dismissal of
that same indictment based on the notion it had been rendered superfluous by
the grand jury’s return of a second indictment. 
Specifically, the prosecutor relied on Berardi v. Superior Court (2008) 160 Cal.App.4th 210 (>Berardi) as authority for the
proposition that dismissal of the initial indictment as a “duplicative
pleading,” which would not have consequences under section 1387, was the
“proper result.”  

                        So everyone agreed the
first indictment must be dismissed.  What
Judge Briseno was struggling with was whether his order granting the dismissal
should be treated as a qualifying
dismissal for purposes of the two-dismissal rule set forth in section 1387 or
not.  A dismissal based on the merits of
Rodriguez’s section 995 would qualify, while under Berardi, as the prosecutor repeatedly emphasized, a dismissal based
on the mere fact a superseding indictment had been returned would not.

                        We know this was Judge
Briseno’s concern because he said so explicitly:  “As to whether the dismissals . . . >should be treated as a dismissal under 1387
is the part that I’m struggling with . . . .” 
(Italics added.)  He then made his
intention clear:  While explicitly
agreeing that the second indictment did supersede the first, Judge Briseno
nonetheless concluded, “I’m going to take a practical approach, and I’m simply
going to dismiss the first indictment . . . and treat that dismissal under
1387.”  When the prosecutor asked “is >Berardi not guiding the court in this
case?” the court responded “not sufficiently.”  


                        As this colloquy makes
clear, no one at the hearing was confused about the issue in dispute.  The question was not whether section 1387
itself provided a basis for
dismissing the first indictment, but instead which of the parties’ competing
justifications for the dismissal would be the one adopted by the court.  The court stated

explicitly
that the issue before it was whether the dismissal everyone agreed to should be
entered “should be >treated as a dismissal under 1387.”  To the extent the “pursuant to” wording of
the clerk’s minute order suggests anything different, it does not control over
the court’s express oral pronouncement. 
“Any discrepancy between the minutes and the oral pronouncement of [the
court] is presumed to be the result of clerical error.”  (People
v. Price (2004) 120 Cal.App.4th 224, 242.)

                        The prosecutor next
argues that, whatever Judge Briseno might have thought he was doing, his only >available option under >Berardi was to dismiss the first
indictment as a duplicative pleading after the grand jury returned the second
indictment.  We are unpersuaded.  In Berardi,
the trial court had already denied the defendant’s motion to dismiss the
information under section 995, and had deferred ruling on his contention he had
been denied a substantial right by the prosecutor’s failure to disclose
exculpatory evidence before his preliminary
hearing, when the prosecutor moved to dismiss the information as
duplicative after the grand jury returned an indictment.  The trial court then granted the prosecutor’s
motion, “expressly confirming that the information was dismissed ‘[a]s a
duplicate filing.’” (Berardi, supra,
160 Cal.App.4th at p. 220.)

                        The issue in >Berardi, then, was whether the trial
court’s decision to dismiss the information as duplicative was itself a
qualifying dismissal under section 1387. 
The appellate court ruled it was not. 
But because the trial court in Berardi
based its dismissal order solely on the ground of duplication, the appellate
court there had no occasion to consider whether the trial court might have been
obligated to render such a
ruling.  Consequently, >Berardi does not support the
prosecutor’s contention that Judge Briseno was obligated to do so in this case.

                        In fact, >Berardi’s discussion of the history and
purpose of section 1387 actually undermines the prosecutor’s contention:  “‘[U]ntil 1975, the interest in prosecuting
felonies was considered so much greater that, while a one-dismissal rule
applied to misdemeanors, felony charges could be refiled ad infinitum.  [Citations.]’ [Citation.]   However, in 1975, section 1387 was amended
to add the felony ‘two dismissal’ limit. 
[Citations.]  Felony prosecutions
are now generally ‘subject to a two-dismissal rule; two previous dismissals of
charges for the same offense will bar a new felony charge.’  [Citation.] 
[¶]  ‘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.]’  [Citation.]  ‘The
purpose of section 1387 is to prevent improper successive attempts to prosecute
a defendant.’”  (Berardi, supra, 160 Cal.App.4th at pp. 218-219, italics added.)

                        If as the prosecutor
here contends, the defendant’s motion for dismissal under section 995 can be >automatically trumped by the return of a
second indictment, the prosecutor could simply ask the grand jury to return a
superseding – albeit otherwise entirely duplicative – indictment every time the
defendant files what appears to be a meritorious motion to dismiss the pending
indictment.  As long as the grand jury
accedes to the prosecutor’s request (and in this case it took less than a day
to accomplish), the prosecutor could prevent the court from >ever granting a qualifying motion to
dismiss under section 1387.  Such a
scenario would completely undermine the purpose of the Legislature’s 1975
amendment of the statute.

                        Here, we infer that
Judge Briseno’s real concern when he decided to grant Rodriguez’s section 995
motion, rather than simply declare the first indictment to be duplicative as
the prosecutor requested, was that the prosecutor’s decision to seek a
superseding indictment against Rodriguez following the grant of Solis’s motion
to dismiss under section 995 and while
Rodriguez’s own similar motion was pending, represented an improper effort
to avoid operation of the two-dismissal rule of section 1387.  That concern was an eminently reasonable one,
and we cannot say Judge Briseno erred in ruling as he did.

>3. 
The Dismissal of the First Indictment was not “Excusable Neglect” Under
Section 1387.1

                        The prosecutor’s final
assertion is that Judge Briseno’s dismissal order constituted excusable neglect
under section 1387.1.  That section
provides that “[w]here an offense is a violent felony, as defined in Section
667.5 and the prosecution has had two prior dismissals, as defined in Section
1387, the people shall be permitted one additional opportunity to refile
charges where either of the prior dismissals under Section 1387 were due solely
to excusable neglect.”  The statute
defines excusable neglect to include “error on the part of the court,
prosecution, law enforcement agency, or witnesses.”  (§ 1387.1, subd. (b).)          

                        As we have already
explained, the prosecutor has failed to demonstrate Judge Briseno erred in his
ruling, and thus there is no basis to conclude that dismissal was due to any
neglect, excusable or otherwise.  But even
if we believed Judge Briseno’s ruling had been erroneous, we would still
conclude that no relief is available under that statute.

                        As the magistrate noted
during the hearing on Rodriguez’s motion to preclude further prosecution of the
dismissed counts, an order dismissing all or part of an indictment – which is
what Judge Briseno issued – is directly appealable.  (§ 1238, subd. (a)(1); >People v. Alice (2007) 41 Cal.4th 668,
680.)  The right to pursue such an appeal
is the remedy available to a party aggrieved by a court’s legal error.

                        It would be inconsistent
with the general treatment of appealable orders as final once the time for
appeal has expired, if we were to allow the prosecutor to eschew that appellate
remedy and first assert that an appealable order was legally erroneous months
(or years) after the time for appeal has expired.  As a consequence, we conclude



 

the
magistrate got it right when he suggested that a court’s “excusable neglect” under section 1387.1 must be limited to
errors which are essentially clerical in nature, and would not include the sort
of legal errors which are properly reviewable on direct appeal.

 

DISPOSITION

 

                        The order is affirmed.

 

 

 

                                                                                   

                                                                                    RYLAARSDAM,
ACTING P. J.

 

WE CONCUR:

 

 

 

BEDSWORTH, J.

 

 

 

ARONSON, J.