Currie v. Superior Court

• Decision Date: 14 May 1991
• Docket Number: B053232,Nos. B053156,s. B053156
• Citation: 230 Cal.App.3d 83,281 Cal.Rptr. 250
• Court: California Court of Appeals Court of Appeals
• Parties: James CURRIE, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent. The PEOPLE, Real Party in Interest. Eugene FINLEY, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent. The People, Real Party in Interest.

Page 250

281 Cal.Rptr. 250

230 Cal.App.3d 83

James CURRIE, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent.

The PEOPLE, Real Party in Interest.

Eugene FINLEY, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent.

The People, Real Party in Interest.

Nos. B053156, B053232.

Court of Appeal, Second District, Division 7, California.

May 14, 1991.

Review Denied July 24, 1991.

Law Offices of Dennis A. Fischer, Dennis A. Fischer, Santa Monica, Alan S. Yockelson, Santa Ana, and Andrew M. Stein, Bellflower, for petitioner (Currie).

Wilbur F. Littlefield, Public Defender, Los Angeles County, Laurence M. Sarnoff, Carole Telfer, and John Hamilton Scott, Deputy Public Defenders, for petitioner (Finley).

No appearance for respondent.

Ira Reiner, Dist. Atty., Los Angeles County, Donald J. Kaplan, and Eugene D. Tavris, Deputy Dist. Attys., for real party in interest.

FRED WOODS, Associate Justice.

In these consolidated original proceedings petitioners Currie (Currie) and Finley (Finley) seek a writ mandating respondent Superior Court to dismiss the informations pending against them. The sought for relief is based upon the prosecutor's failure to inform petitioners until after their preliminary hearings that the victim of all the charges alleged against them was himself currently charged with filing a false report, a misdemeanor (PEN.CODE, § 148.5)¹. We deny the writs.

PROCEDURAL BACKGROUND

Petitioners, in separate informations consolidated for trial, are charged with conspiracy to commit murder (§ 182, subd. (a)(1)), robbery (§ 211), felony assault (§ 245, subd. (a)(1)), and burglary (§ 459). All the crimes are alleged to have occurred on June 30, 1989. The alleged victim is Bart Francis Sullivan (Sullivan). Petitioner Currie is additionally charged with dissuading a witness (§ 136.1, subd. (c)(1)) and solicitation of murder (§ 653f, subd. (b)). The victim of these crimes, allegedly committed November 16, 1989, is also Sullivan.

The procedural history is tortuous. On August 1, 1989, the district attorney filed a felony complaint against Currie charging him only with robbery. Following a November 9 preliminary hearing, he was held to answer on that charge. An amended information adding violations of sections 459, 236, and 245 was filed December 11. But all charges were dismissed on January 12, 1990, when Currie's section 995 motion was granted.

A second felony complaint was filed January 26, 1990, and Currie, on March 15, 1990, was again held to answer. He was arraigned in superior court on March 29, 1990, and pleaded not guilty.

Finley was separately charged with the four felony offenses and on February 8, 1990, was held to answer on them all. On February 22, 1990, he was arraigned in superior court and pleaded not guilty.

In May 1990, both petitioners were informed by the district attorney that Bart Francis Sullivan, the alleged victim of the charges against them, had been charged with falsely reporting a crime, a misdemeanor (§ 148.5). The crime was allegedly committed by Sullivan on June 9, 1989, with a crime report taken August 15, 1989, and the misdemeanor complaint filed August 25, 1989.

On May 22, 1990, Finley's 995 motion was denied. On June 4, 1990, he filed a nonstatutory motion to dismiss the information. On June 5, 1990, Currie also filed a nonstatutory motion to dismiss the information. The motions were based upon the district attorney's failure to disclose, until long after their preliminary hearings, that he had charged Sullivan with misdemeanor filing a false report (§ 148.5) and that the charge was pending. In their motions petitioners urged that the withheld information was relevant to the credibility of Sullivan and its nondisclosure violated their right to confrontation and cross-examination.

The district attorney, RPI, opposed the motions.

A hearing on the motions began July 2, 1990, before Superior Court Judge C. Robert Simpson. Sullivan testified. The hearing was continued to July 3, 1990, but did not then resume. Instead the parties were directed to file additional points and authorities and the matter was continued to July 20, 1990. On that date the court took the matter under submission. On July 25, 1990, the court issued an 8-page "Ruling and Order On Non-Statutory Motions To Dismiss The Information."

The Ruling and Order found that the district attorney had a duty, without a request, to disclose to petitioners information concerning the misdemeanor prosecution of Sullivan; that the district attorney had breached that duty; that as a consequence petitioners' right to cross-examine Sullivan at their preliminary hearings had been impaired; that the good faith of the district attorney was not relevant to the district attorney's duty nor to the remedy for its breach; and that petitioners "were denied a substantial right at their respective preliminary hearings."

The court then purported to "grant" the motions but instead of providing the sought for relief, dismissal of the informations, instead fashioned its own remedy. Citing Stanton v. Superior Court (1987) 193 Cal.App.3d 265, 239 Cal.Rptr. 328 as authority, and using section 995a, subdivision (b) ² as a guide, the court remanded the cases to the Downey Municipal Court Presiding Judge. That judge was ordered to vacate the holding to answer orders, "open the proceeding for testimony and other evidence concerning any and all aspects of People v. Sullivan, case number 89M07932, filed in the Downey Municipal Court on August 25, 1989," and if either petitioner "is held to answer, to return the case to the Superior Court ... not later than August 6, 1990."

On July 27, 1990, the parties appeared before Downey Municipal Court Presiding Judge Robert G. Drees. He noted that the magistrate who had held Currie to answer, Judge Cumming, was on vacation and would be unavailable for at least two weeks. He transferred the matters to Judge Donald L. Wilson. After still other transfers the Currie matter came before Municipal Court Judge Reynaldo Chaparro. On August 2, 1990, he ruled the municipal court lacked jurisdiction to implement the superior court order and remanded the Currie case back to the superior court. On August 3, 1990, Municipal Court Judge Donald L. Wilson similarly ruled he was without jurisdiction to proceed in the Finley matter and referred it to the superior court.

On August 6, 1990, Superior Court Judge Simpson stated "that the magistrates below were in error ... concluding that they had no jurisdiction to carry out my order." Further, "that the defendants [petitioners] have waived their right to further cross-examine Mr. Sullivan in the courts below by virtue of their jurisdictional arguments, and this court will therefore deem such waiver as being by operation of law a withdrawal of ... their motions before this court."

The court then reset the matters for trial.

DISCUSSION

I. Was the superior court remand order valid?

The district attorney, RPI, argues the superior court remand order was valid for either of two alternative reasons. First, because petitioners' motions, expressly not pursuant to section 995, could have been brought pursuant to section 995, ³ and if they had been, then section 995a, subdivision (b)(1) see fn. 2 authorized the "minor error[ ] of omission" remand.

The first part of the argument (that a non-995 motion may be considered a 995 motion) finds some support in People v. Aguirre (1987) 193 Cal.App.3d 1168, 238 Cal.Rptr. 750. The Court of Appeal stated "[t]he fact that defense counsel incorrectly labeled his request for dismissal a '995 motion' did not leave the court without authority to grant relief." (Id. at p. 1171, fn. 1, 238 Cal.Rptr. 750.) Aguirre then considered the merits of the "non-995 motion."

But, assuming that petitioners' non-995 motions may be considered 995 motions, ⁴ Aguirre is an obstacle to the second part of the argument. Aguirre clearly implies that a preliminary hearing error not reflected in the preliminary hearing transcript is outside the scope of a 995 motion. (Ibid.) It was solely for that reason that the Aguirre 995 motion, based upon belatedly provided prison reports, was "incorrect."

Although section 995 ⁵ does not expressly confine its scope to errors present in the preliminary hearing record, it has, with one exception, been uniformly so construed. (People v. Crudgington (1979) 88 Cal.App.3d 295, 299, 151 Cal.Rptr. 737 ["The purpose of a motion to set aside the accusatory pleading under Penal Code section 995 is to review the sufficiency of the indictment or information on the basis of the record made before the grand jury in the one case or the magistrate at the preliminary hearing in the other. A section 995 motion does not contemplate the introduction of evidence at the hearing on the motion."]; Stanton v. Superior Court (1987) 193 Cal.App.3d 265, 269, 239 Cal.Rptr. 328.) The exception, People v. Mackey (1985) 176 Cal.App.3d 177, 221 Cal.Rptr. 405 has been justifiably characterized as "aberrational." (Stanton v. Superior Court, supra, 193 Cal.App.3d 265, 270, 239 Cal.Rptr. 328.)

We conclude that because petitioners' motions to dismiss were based upon matters outside the preliminary hearing record, the motions could not have been brought pursuant to section 995.

We need not consider, therefore, whether failure to timely provide disclosure was a "minor error[ ] of omission" within the meaning of section 995a, subdivision (b)(1). (Compare Tharp v. Superior Court (1984) 154 Cal.App.3d 215, 201 Cal.Rptr. 131, Loverde v. Superior Court (1984) 162 Cal.App.3d 102, 208 Cal.Rptr. 134, Hallissy v. Superior Court (1988) 200 Cal.App.3d 1038, 248 Cal.Rptr. 635 with Caple v. Superior Court (1987) 195 Cal.App.3d 594, 241 Cal.Rptr. 735.)

The district attorney's alternative reason is this: in order to justly determine petitioners' nonstatutory motions the superior court properly invoked its nonstatutory remand authority. In support of ...