Caple v. Superior Court

• Decision Date: 16 October 1987
• Citation: 195 Cal.App.3d 594,241 Cal.Rptr. 735
• Court: California Court of Appeals Court of Appeals
• Parties: William Henry CAPLE, Jr., Petitioner, v. The SUPERIOR COURT of the State of California for the County of Los Angeles, Respondent, The PEOPLE of the State of California, Real Party In Interest. Civ. B027534.

Page 735

241 Cal.Rptr. 735

195 Cal.App.3d 594

William Henry CAPLE, Jr., Petitioner, v. The SUPERIOR COURT of the State of California for the County of Los Angeles, Respondent, The PEOPLE of the State of California, Real Party In Interest.

Civ. B027534.

Court of Appeal, Second District, Division 3, California.

Oct. 16, 1987.

John Cheroske, Torrance, for petitioner

No appearance by respondent.

Ira Reiner, Dist. Atty., Donald J. Kaplan and Lorraine A. Silvers, Deputy Dist. Attys., for real party in interest.

KLEIN, Presiding Justice.

Petitioner William Henry Caple, Jr., (Caple) sought an alternative writ of mandate/prohibition directing the superior court to show cause why its order denying Caple's Penal Code section 995 motion should not be reversed. ¹

We granted an alternative writ. Because the trial court properly remanded the matter to the municipal court pursuant to section 995a, subdivision (b)(1), to correct a minor error of omission which could be expeditiously cured, the petition is denied. ²

FACTUAL AND PROCEDURAL BACKGROUND

On February 16, 1987, at approximately 9:30 p.m., City of Gardena Police Officer Ronald Mark (Mark) effected a traffic stop on an El Camino pickup truck driven by Tyrone Johnson (Johnson) in which Caple rode as a passenger. ³

In the course of issuing both individuals citations for failure to wear seat belts, Mark noticed a mild odor of marijuana emanating from the car, and observed a half-burnt marijuana cigarette in the El Camino's dashboard ashtray. In a consensual A felony complaint filed under case number A918084 charged Johnson and Caple with possession of more than 14.25 grams of cocaine for the purpose of sale (Health & Saf.Code, § 11351.5; § 1203.07, subd. (a)(1)), and with sale or transportation of a controlled substance (Health & Saf.Code, § 11352), rendering them ineligible for probation (§ 1203.073, subd. (b)(6)).

search of the vehicle, Mark located 1,233.8 grams of cocaine under some papers behind the driver's bucket seat.

At the preliminary hearing under this case number, Mark testified the registration for the El Camino indicated neither Johnson nor Caple owned the vehicle, but that Caple had volunteered the car belonged to him. At the close of this hearing, the magistrate dismissed the complaint because the prosecution had failed to show a chain of possession between the cocaine Mark found in the El Camino and the cocaine defense counsel stipulated had been analyzed.

The People refiled the case under number A918249. At the beginning of the preliminary hearing on this complaint, neither defense counsel asserted the right to make a suppression motion and, possibly for this reason, Mark testified to a somewhat abbreviated version of the facts he had related at the first preliminary hearing. Although Mark again noted the presence of a half-smoked marijuana cigarette and identified Caple as seated within a foot and a half of the cocaine, the officer did not mention the seat belt citation, the odor of marijuana, the consent to search or Caple's spontaneous statement of ownership of the vehicle.

At the close of the evidence, Caple moved to dismiss the complaint because the prosecution had not established his possession or knowledge of the cocaine. The magistrate denied the motion and held both defendants to answer in superior court.

Thereafter, Caple filed a motion pursuant to section 995 asserting the same basis for dismissal. The trial court indicated its inclination to agree with Caple stating:

"THE COURT: ... I just don't see any rational connection of the defendant Caple with the contraband sufficient to hold him to answer and to stand trial....

"...

"MR. ALHADEFF [deputy district attorney]: If the court is saying we don't have enough to go to trial--if the court is concerned whether there has been a minor omission--

"THE COURT: I think there has been a major omission.

"MR. ALHADEFF: If there has been what you consider to be a minor omission, with a very brief amount of testify [sic], we would ask under Penal Code 995 [sic], the court to give us the opportunity to be able to reopen.

"THE COURT: I think what you have to do, you have to connect Caple up with the drug. If you have the evidence, you should put it back on.

"...

"MR. ALHADEFF: If Penal Code section 995 [sic] indicated it had to be to a major issue--here we are concerned only with a minor omission that can be cured with very brief testimony. That does fall within that Penal Code [sic]. I would ask leave of the court very respectfuly [sic] for the People to have that opportunity to cure that.

"THE COURT: It's going to be same officer?

"MR. ALHADEFF: Absolutely. Very brief.

"THE COURT: Put him back on."

The trial court then remanded the matter forthwith to the municipal court "to correct errors ... which consist of omission of any evidence that connects [Caple] to the contraband, other than his presence in the vehicle."

After a pause in the proceedings, defense counsel attempted to point out the impropriety of the remand for correction of a "major" defect. The trial court concluded this discussion by stating: "I will just state for the record that I have heard the People's motion to remand to municipal court Upon remand to municipal court, Mark testified to Caple's statement regarding ownership of the El Camino and the matter was returned to the trial court where Caple's motion to dismiss was denied.

for further proceedings under 995(A) [sic], and I am willing to do that but for the fact that the defect that I have described, I would tend to characterize it as a major defect. The People do not. [p] And the defendant is objecting to my referring it to municipal court on the theory that the defect is not intrinsically a minor defect but rather is a major defect. [p] The only thing I can say, I described the defect for the record as well as I could. Perhaps the Court of Appeals could tell me whether that is a major or minor defect."

CONTENTIONS

Caple contends remand to the municipal court for additional preliminary hearing evidence constituted an abuse of the trial court's discretion because the omitted testimony was not minor within the meaning of section 995a, subdivision (b)(1).

DISCUSSION

1. Evolution of section 995a, subdivision (b)(1). ⁴

"Historically, trial courts have been prohibited from remanding felony prosecutions to correct errors in the commitment. In Burnett v. Superior Court (1974) 12 Cal.3d 865 [117 Cal.Rptr. 556, 528 P.2d 372] ..., the Supreme Court ordered the trial court to rule on the defendant's motion to set aside the information rather than remand errors in the commitment to the magistrate for correction. The court concluded section 997 did not authorize a remand to correct anything more than a procedural irregularity or inadvertency not encompassing a judicial act. (Id., at pp. 872-873 [117 Cal.Rptr. 556, 528 P.2d 372].) Under Burnett, a magistrate was no more empowered to correct post bind over judicial error than a trial court was authorized to correct post judgment judicial error." (Tharp v. Superior Court (1984) 154 Cal.App.3d 215, 219, 201 Cal.Rptr. 131.)

At the time of the Burnett v. Superior Court (1974) 12 Cal.3d 865, 117 Cal.Rptr. 556, 528 P.2d 372, decision, former section 1387 barred further proceedings after dismissal only for misdemeanors, but permitted multiple prosecutions of felonies. Thus, the Burnett rule merely required the People to refile dismissed felonies and again proceed to preliminary hearing. (Former § 1387.) However, the 1980 amendment of section 1387 prevented the refiling of a felony which had been dismissed twice pursuant to section 995. ⁵

Assembly Bill 2984 added the remand procedure of section 995a, subdivision (b), which is in issue here. The Assembly Committee on Criminal Justice, the Senate Committee on Judiciary, as well as the Legislature as a whole passed the bill unanimously in 1982. Its provisions changed, to some extent, the holding in Burnett. ⁶

Before a trial court may institute further proceedings to correct preliminary hearing errors, section 995a requires it make two separate findings: (1) a minor error of omission, ambiguity or technical defect which, (2) can be expeditiously cured.

2. Meaning of the phrase "minor error of omission."

Tharp v. Superior Court, supra, 154 Cal.App.3d at page 220, 201 Cal.Rptr. 131, defined an omission as "the act of failing to include, of forgetting. [Citation.]" Because the failure to elicit Caple's statement concerning ownership of the El Camino falls within this definition, it need only be determined whether the omission is minor.

The word "minor," used in the phrase "minor error of omission," renders those words susceptible of at least two different interpretations. An omission so described might refer either to something minor in relation to the whole, or might mean minor in the sense of insignificant.

Caple argues the phrase should be accorded the latter interpretation. That is, any omission which causes an information to fail must be regarded as significant and major and therefore, not minor. This analysis begs the question by gauging the magnitude of the defect by its effect on the prosecution's case. Adoption of such a definition would totally eviscerate section 995a, subdivision (b)(1), by permitting its use only when the omitted evidence was unnecessary in the first instance. Clearly, the Legislature did not intend the section to be so limited; application of Caples' reasoning renders enactment of the section an idle act.

One of the fundamental rules governing interpretation of an ambiguous statute is to ascertain and give effect to the Legislature's intent. (Young v. Haines (1986) 41 Cal.3d 883, 894, 226 Cal.Rptr. 547, 718 P.2d 909; Code of Civ.Proc., § 1859.) In determining this intent we first look to the words of the statute themselves. (Tracy v. Municipal Court (1978) 22 Cal.3d 760, 764, 150 Cal.Rptr. 785, 587 P.2d 227.)

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