Garcia v. Superior Court
Decision Date | 17 September 2009 |
Docket Number | No. H033111.,H033111. |
Citation | 99 Cal. Rptr. 3d 488,177 Cal.App.4th 803 |
Court | California Court of Appeals Court of Appeals |
Parties | EDGARDO GARCIA, Petitioner, v. THE SUPERIOR COURT OF MONTEREY COUNTY, Respondent, THE PEOPLE, Real Party in Interest. |
James S. Egar, Public Defender, and Michelle C. Wouden, Deputy Public Defender, for Petitioner.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Stan Helfman and Sharon G. Birenbaum, Deputy Attorneys General, for Respondent.
No appearance for Real Party in Interest.
Petitioner Edgardo Garcia requests the issuance of a writ of mandate directing the trial court to vacate its order denying his motion to set aside count 3 of the information pursuant to Penal Code section 995, and to enter a new order dismissing count 3 of the information.1 The question presented is whether the trial court erred in granting the People's request to reopen the preliminary hearing, pursuant to section 995a, subdivision (b)(1), for the purpose of permitting the court, sitting as a magistrate, to hear new evidence before ruling on defendant's motion to set aside count 3 of the information, which alleges a felony violation of section 148. We hold that the trial court erred, on these facts, by allowing the prosecutor to present revised testimony in order to fill an evidentiary vacuum concerning the gravamen of the offense. We will therefore issue a peremptory writ of mandate vacating the respondent superior court's order denying petitioner's section 995 motion with respect to count 3, and directing respondent court to enter an order dismissing count 3 of the information.
Petitioner is a defendant in a criminal action currently pending in the superior court. By information, he is charged in Monterey County with the following felony offenses: concealing a firearm on his person (§ 12025, subd. (a)(2), count 1); carrying an unregistered, loaded firearm on his person (§ 12031, subd. (a)(1), count 2); resisting, delaying or obstructing a police officer in the discharge or attempted discharge of his duty (§ 148, subd. (a)(1), count 3); and actively participating in a criminal street gang (§ 186.22, subd. (a), count 4). Counts 1 and 2 include special allegations that defendant, during the commission of the offenses, was an active participant in a criminal street gang; was not the registered owner of the firearm; "knew and reasonably should have known" the firearm was stolen; and committed the offenses for the benefit of, at the direction of, or in association with the Norteño criminal street gang, with the specific intent to promote, further or assist in any criminal conduct by gang members. (§§ 12025, subd. (b)(3), (6), (2), 12031, subd. (a)(2)(B), (C), (F), 186.22, subd. (b)(1).) Count 3 (resisting, etc., arrest) includes the allegation that defendant resisted arrest for the benefit of, at the direction of, or in association with the Norteño criminal street gang. (§ 186.22, subd. (d).)2
A preliminary hearing was held on May 9, 2008. Police Officer Salvador Reynaga testified that at around 10:00 p.m. on March 26, 2008, he was on patrol in the City of Seaside with fellow officer Nick Borges, heading eastbound on Olympia, when he noticed a group of four Hispanic men walking south on Noche Buena. As soon as the men saw the officers' police car, they separated. Officer Reynaga, who was the driver, immediately stopped the car and both officers exited. One of the men ran, and Officer Reynaga gave chase. Thus, Officer Reynaga was not in the area when his partner made contact with defendant Garcia.
Narcotics Detective Nick Borges testified that he focused on defendant because he was familiar with defendant from prior police contacts and arrests and knew that defendant was a gang affiliate. Borges stayed by the police car and watched defendant, maintaining eye contact with him, as defendant rapidly walked west on Olympia. Detective Borges noticed a bulge protruding near defendant's waistband area; defendant had both hands cupped around the bulge as if he were holding something. Defendant walked behind a green van that was parked on the street. Borges was still able to see defendant's upper body through the van's windows. Defendant's No one else was in the area. He searched the yard area and found a loaded .32-caliber Deutsche-Werke handgun in a flowerbed. He arrested defendant.
Defendant was wearing gang-related clothing: a red belt with the letter "N" on the belt buckle. He also had a red cellular telephone that had numerous photographs of what Borges believed to be gang indicia. Defendant also sported several gang-related tattoos.
On cross-examination, Detective Borges was asked: "[W]hen you were making contact with these four individuals, had you observed them committing any crime?" He answered "no." Borges agreed it was "a consensual encounter" the purpose of which "was just to make contact with the individuals." He elaborated: However, while the three other men scattered, defendant continued walking westbound on Olympia, in the direction that he was already going. Nevertheless,
Seaside Officer Dexter Johnson, one of the gang officers for the department, testified that in his opinion defendant "is an active member of the Norteño street gang." He was asked: Officer Johnson responded: "Basically the will to get away from the police in possession of a firearm can do nothing but keep that firearm out on the street as it can be traded for other weapons, or it could be used to commit a criminal act against [a] rival gang member or other members within the community."
At the conclusion of the preliminary hearing, defense counsel asked that defendant not be held to answer on the resisting arrest count because "[t]here was no testimony given that Mr. Garcia willfully or unlawfully resisted or delayed a peace officer in the course of his duties." The magistrate responded: The court rejected defense counsel's further argument that an individual has the right to walk away from a consensual encounter and held defendant to answer on all charges.
On June 9, 2008, defense counsel filed a motion to dismiss the information pursuant to section 995 on the ground, among others, "that the felony enhanced resisting, obstructing, or delaying a peace officer must be dismissed because there was absolutely no evidence presented that Mr. Garcia in any way resisted, delayed, or obstructed a peace officer in the course of his duties."
On June 16, 2008, the district attorney filed a response to defendant's motion. In it, pursuant to section 995, subdivision (b)(1).
On June 20, 2008, the superior court heard argument on the district attorney's request to reopen the preliminary hearing for further testimony by Detective Borges. The court stated that it agreed with the defense that the People "didn't put on the evidence sufficient to hold him to answer to the charge." However, the court considered the blunder "the kind of omission that the statute [§ 995a, subd. (b)(1)] allows for correcting" and granted the district attorney's request to reopen the preliminary hearing. Noting his continuing objection to any "do over" at all, defense counsel agreed with the prosecutor to permit the superior court judge to sit as magistrate for the purpose of reopening the preliminary hearing to take additional evidence from Detective Borges.
On June 24, 2008, the court heard and denied defendant's renewed motion for reconsideration of the court's earlier ruling.
On June 27, 2008, the court heard Detective Borges's revised testimony, as follows.
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