Berardi v. Superior Court

• Decision Date: 25 January 2008
• Docket Number: No. D051271.,D051271.
• Citation: 160 Cal.App.4th 210,72 Cal.Rptr.3d 664
• Court: California Court of Appeals Court of Appeals
• Parties: George H. BERARDI, Petitioner, v. The SUPERIOR COURT of San Diego County, Respondent; The People, Real Party in Interest.

72 Cal.Rptr.3d 664

160 Cal.App.4th 210

George H. BERARDI, Petitioner, v. The SUPERIOR COURT of San Diego County, Respondent; The People, Real Party in Interest.

No. D051271.

Court of Appeal, Fourth District, Division 1.

January 25, 2008.

Jose Carlos Rojo, Law Offices of Jose c.

Rojo, San Diego, CA, for Petitioner.

No appearance for Respondent.

Bonnie M. Dumanis, District Atty., Cathy Stephenson, Craig E. Fisher and Richard S. Armstrong, Deputy Dist. Attys., San Diego, CA, for Real Party in Interest.

McDONALD, Acting P.J.

George H. Berardi filed a petition for writ of mandate and/or prohibition challenging the trial court's order overruling his demurrer to a complaint filed by the San Diego County District Attorney's Office charging him with murder (Pen.Code, § 187, subd. (a))¹ and conspiracy to commit murder (§§ 182, subd. (a)(1), 187, subd. (a)). Berardi argues the complaint is barred by section 1387's "two dismissal" rule because there have been two prior dismissals or terminations of actions against him involving the same charges. He alternatively argues that to the extent section 1387 does not require dismissal of the complaint, he is denied his constitutional right to equal protection of the law.

FACTUAL AND PROCEDURAL BACKGROUND²

At about 6:00 p.m. on July 8, 2005, police found Marcus Keglar lying on the ground between two apartment buildings. (Berardi, supra, 149 Cal.App.4th at p. 481, 57 Cal.Rptr.3d 170.) He had been shot in the head and died after being taken to the hospital. (Ibid.) In August, Daniel May admitted he shot Keglar and told police Berardi was not involved. (Ibid.)

On July 9, Anna Tong, Berardi's friend, told police Berardi did not sell marijuana and heard him tell Keglar to "`leave him alone and he didn't sell weed.'" (Berardi supra, 149 Cal.App.4th at p. 488, 57 Cal. Rptr.3d 170.) On July 20, she told police that no one told her May killed Keglar, although the circumstances appeared suspicious to her.³ (Berardi supra, 149 Cal. App.4th at p. 488, 57 Cal.Rptr.3d 170.) However, in March 2006, Tong told police that Berardi was involved in the planning of Keglar's murder. (Id. at p. 481, 57 Cal.Rptr.3d 170.)

On March 23, 2006, the People filed a complaint (in San Diego County Superior Court Case No. SCD197777) charging Berardi with murder and conspiracy to commit murder. (Berardi supra, 149 Cal. App.4th at p. 482, 57 Cal.Rptr.3d 170.) At Berardi's preliminary hearing on those charges, Tong testified that on July 8, 2005, she and Berardi drove from her apartment (in which Berardi also lived) to a restaurant. During the drive, Berardi by telephone discussed a marijuana deal with Keglar. Berardi discussed the amount of marijuana and the location of the transaction at the cul-de-sac near Tong's apartment complex. While at the restaurant, Berardi told Tong she was going to be his alibi because May was going to meet and shoot Keglar while they (Berardi and Tong) were at the restaurant. Berardi explained that for one of them (Berardi or Keglar) to be with Desiree Winchell (Berardi's former girlfriend and Keglar's current girlfriend), one of them had to die. While at the restaurant, Berardi received a telephone call from May. During that call, Berardi said, "The pizza ha[s] been delivered," which Tong later learned meant Keglar had been shot. When they returned to the apartment, Tong spoke with May, who appeared distraught. May told her he shot Keglar and needed to leave.⁴ Based on the preliminary hearing evidence, the magistrate (San Diego County Superior Court Judge John M. Thompson) found probable cause to bind Berardi over for trial. (Berardi supra, 149 Cal.App.4th at p. 482, 57 Cal. Rptr.3d 170.) On May 23, the People filed an information charging Berardi with murder and conspiracy to commit murder. On or about May 24, a consolidated information was filed against Berardi and May (in San Diego County Superior Court Case No. SCD193311, the case number originally involving only May) charging Berardi and May with murder and conspiracy to commit murder. (Ibid.)

On June 13, Berardi filed a motion to set aside the information against him pursuant to section 995 for lack of reasonable or probable cause and also based on the denial of a substantial right when the prosecutor did not disclose exculpatory evidence before Berardi's preliminary hearing. In particular, Berardi argued the prosecutor did not disclose until after his preliminary hearing that Tong, shortly before that hearing, requested immunity for herself and her boyfriend, Nathaniel Green. Without that evidence, Berardi argued he was not afforded an opportunity to fully cross-examine Tong at his preliminary hearing.

On June 16, the People filed an amended consolidated information against Berardi and May, adding the special circumstance allegation that they killed Keglar while lying in wait (§ 190.2, subd. (a)(15)).

Apparently on June 28, the trial court (San Diego County Superior Court Judge Kerry Wells) denied Berardi's section 995 motion to set aside the information, but declined to consider his additional due process claim at that time.⁵ (Berardi supra, 149 Cal.App.4th at p. 482, fn. 2, 57 Cal. Rptr.3d 170.)

On June 30, Berardi filed a motion to set aside the information and its special allegation based on due process grounds. He argued he was denied a substantial right at the preliminary hearing and the prosecutor violated her Brady⁶ obligation to timely provide disclosure of exculpatory evidence, essentially restating the argument in his June 13 motion to set aside the information. The hearing on that motion apparently was set for July 21.

However, before a hearing was held on Berardi's June 30 motion to set aside the information based on due process grounds, the prosecution sought a grand jury indictment against Berardi and May. (Berardi supra, 149 Cal.App.4th at p. 482, 57 Cal. Rptr.3d 170.) After the prosecution presented its evidence, the grand jury found probable cause to indict Berardi and May. (Ibid.)

On July 12, the People filed the indictment (in San Diego County Superior Court Case No. SCD193826) charging Berardi and May with murder and conspiracy to commit murder. (Berardi, supra, 149 Cal. App.4th at p. 482, 57 Cal.Rptr.3d 170.)

On July 17, the People filed a motion to set aside (i.e., dismiss) the information (in SCD193311) as a duplicative pleading to the indictment (in SCD193826). The motion stated:

"[D]efendants [Berardi and May] have been charged with crimes and allegations in an Amended Information in [SCD193311]. A Grand Jury returned a True Bill for these same charges and allegations as to each defendant from the same events that occurred on July 8, 200[5]. An Indictment is filed before this court in [SCD193826]. The People move to dismiss the Information in favor of the Indictment due to the duplicative pleadings."

On July 21, the trial court (Judge Thompson) granted the People's motion to dismiss the information. When the prosecutor asked whether the information was dismissed "[a]s a duplicate filing," the court stated that it was dismissed "[a]s a duplicate filing." Berardi and May were then arraigned on the indictment.

Berardi filed a motion to dismiss the indictment pursuant to section 939.71 ⁷ and, alternatively, on due process grounds. (Berardi supra, 149 Cal.App.4th at pp. 482-483, 57 Cal.Rptr.3d 170.) He argued the prosecution did not inform the grand jury of certain exculpatory evidence and misrepresented to the grand jury other exculpatory evidence. (Id. at p. 482, 57 Cal.Rptr.3d 170.) The trial court (Judge Thompson) found the prosecution had failed to comply with its duty to notify the grand jury Of exculpatory evidence, but its failure did not create a substantial prejudice because Berardi (and May) would have been indicted by the grand jury even had the prosecution fully disclosed the exculpatory evidence. (Ibid.) The court denied Berardi's motion to dismiss the indict' ment. (Id. at p. 483, 57 Cal.Rptr.3d 170.) Berardi filed a petition challenging the trial court's order denying his motion to dismiss the indictment.⁸

In Berardi supra, 149 Cal.App.4th 476, 57 Cal.Rptr.3d 170 (issued on April 6, 2007), we concluded:

"Berardi has shown the prosecution's disclosure to the grand jury was inadequate and inaccurate, and the disclosure deficiencies seriously interfered with the grand jury's investigatory function, undermining its independence. Examining the record as a whole, we conclude it is reasonably probable the grand jury would not have found probable cause to indict had it been properly informed of the exculpatory evidence. Accordingly, we grant Berardi's writ petition and order the trial court to dismiss the indictment under section 939.71. Given our holding, we need not address Berardi's request for dismissal on due process grounds." (Berardi supra, 149 Cal. App.4th at p. 481, 57 Cal.Rptr.3d 170.)

In support of that conclusion, we reasoned:

"Evaluating the record as a whole, the prosecution's case was predicated almost exclusively on the testimony of a single witness—Tong—whose information was derived from [Berardi's] admissions, with no other direct evidence of guilt and no strong circumstantial evidence. Although the grand jury had the opportunity to assess Tong's credibility, it had no knowledge of three important evidentiary items that were relevant to that assessment: i.e., May's statement exonerating Berardi; May's statement that there was an agreement to sell marijuana, not an agreement to commit murder; and Omar's statement that Tong told him she was planning to lie to inculpate Berardi. These disclosure deficiencies, considered in the light of the probable cause evidence presented by the prosecution, create a serious doubt as to whether the grand jury would have found a strong suspicion of guilt absent the error." (Berardi supra, 149 Cal. App.4th at p. 497, 57 Cal.Rptr.3d 170.)

We ordered that a peremptory writ of mandate be issued directing the trial court to...