Sea Horse Ranch, Inc. v. Superior Court

• Citation: 30 Cal.Rptr.2d 681,24 Cal.App.4th 446
• Decision Date: 26 April 1994
• Docket Number: No. A061366,A061366
• Court: California Court of Appeals
• Parties: SEA HORSE RANCH, INC. et al., Petitioners, v. The SUPERIOR COURT of San Mateo County, Respondent; The PEOPLE, Real Party in Interest.

Page 681

30 Cal.Rptr.2d 681

24 Cal.App.4th 446

SEA HORSE RANCH, INC. et al., Petitioners, v. The SUPERIOR COURT of San Mateo County, Respondent The PEOPLE, Real Party in Interest.

No. A061366.

Court of Appeal, First District, Division 5, California.

April 26, 1994.

As Modified on Denial of Rehearing May 18, 1994.

As Modified April 28, 1994.

Review Denied July 21, 1994.

Ted W. Cassman, Cooper, Arguedas & Cassman, Emeryville, CA, for petitioners Sea Horse Ranch, Inc. and Arbis "Al" Shipley.

No appearance for respondent San Mateo County Superior Court.

Daniel E. Lungren, State Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Ronald S. Matthias, Supervising Deputy Atty. Gen., Richard Rochman, Deputy Atty. Gen., Office of State Atty. Gen., San Francisco, CA, for real party in interest.

HANING, Associate Justice.

Petitioners Sea Horse Ranch, Inc. (the Ranch), and its president, Arbis "Al" Shipley, are charged by information with one count of involuntary manslaughter (Pen.Code, § 192, subd. (b)); the Ranch is also charged with one count of willfully suffering a mischievous animal to roam at large with the result that it kills a human being (Pen.Code, § 399). ¹ The charges arise from an incident in which a horse escaped from the Ranch onto an adjacent state highway and collided with a car, killing the passenger. Petitioners moved to dismiss the information under section 995. The superior court denied the motion in substantial part, and petitioners seek writ review.

We initially summarily denied the petition, primarily for petitioners' failure to provide an adequate record. (See Sherwood v. Superior Court (1979) 24 Cal.3d 183, 186-187, 154 Cal.Rptr. 917, 593 P.2d 862; Cal. Rules of Court, rule 56.) ² Petitioners sought review in the Supreme Court, which allowed them to complete their record in that court and then granted review. The Supreme Court returned the matter to this court with directions to issue the alternative writ. Having done so, having reviewed a record which was not previously submitted to us, and having heard oral argument, we deny the petition as to the manslaughter charge, but grant relief on the charge of keeping a mischievous animal.

FACTS

On March 23, 1992, well after 7:00 p.m., an automobile struck a horse that was running free on coastal Highway 1 in Half Moon Bay. The passenger in the car, 76-year-old Viola Scheutrum, was killed when the impact with the horse crushed the roof of the passenger compartment. The accident occurred directly in front of the main driveway of the Ranch. It was after dark, there were no streetlights and the highway was poorly lit.

An officer responding to the scene noticed no less than eight horses running free on the highway. They were not ambling, but running at a "trot[ ] to a gallop." The horses were dark brown, and were not picked up in the officer's headlights. The officer could not see the horses until he activated his red and blue strobe-light flashers.

The petition's assertion that "the prosecution presented no evidence suggesting that ... [petitioner] Shipley ... knew of the allegedly inadequate condition of the corral fence[,]" is misleading. Chuck Bunce, the Ranch's foreman, told the officer that all the horses on the highway belonged to the Ranch. The officer met with petitioner Shipley, who told the officer the horses had escaped through the corral fence on the west The fenceposts were old, weather-worn, bug-infested and rotting. Several cross boards had been knocked off the posts where the wood was rotten, leaving a hole in the corral fence. The nails which had attached the cross boards were not in good condition. The boards were broken out from the inside, with no sign of vandalism. The fence was so dilapidated that when the officer leaned on a cross board, it fell off. The cross boards were mounted improperly on the outside of the fenceposts, making them more easily pushed out from animals on the inside. Contrary to common practice, there was no wire strung along the inside of the fence to keep horses away from the cross boards. Neither was there any electrical wire around the inside of the corral. The Ranch had not erected a fence along the front boundary with Highway 1 to keep the horses off the highway. The Ranch's border with the highway was not well-lit.

side. One Kevin [24 Cal.App.4th 451] Shipley, presumably related to petitioner Shipley, took the officer to an area of the corral fence on the western part of the Ranch, and identified it as the place where the horses got free.

Although petitioners vigorously dispute the point, the Ranch has a history of escaping horses. An investigating officer, Detective Wendy Bear, testified that Bunce told her the horses had broken down the fence in the past and had escaped. Bear also testified that Mr. Jaycea Caudle, who lived on the Ranch premises, told her equine escapes were a "frequent occurrence." Petitioners objected to this evidence as hearsay; the court overruled the objection subject to a motion to strike. Caudle later testified as a defense witness and denied that he had personal knowledge of horse escapes. The motion to strike was not made, and petitioners' own counsel solicited from Bear on cross-examination that Caudle had told her that escapes became more frequent after petitioner Shipley took over the Ranch, and that horses had escaped "more times than [Caudle] could count."

The People also presented evidence suggesting that the Ranch's horses escaped onto Highway 1 on several previous occasions. These prior escapes are presented with some detail in the petition, which assaults the evidence as not probative. The petition overlooks the point that the evidence was presented at the preliminary hearing, where the standard of proof is probable cause. The evidence established that large groups of horses were running free on Highway 1 on four occasions in 1991 and early 1992, in the vicinity of the Ranch. On one of those occasions Bunce told the police he would take care of the horses; on another, petitioner Shipley told the police he "would need to look to see [sic ] for the horses." On this latter occasion petitioner Shipley was cited by the Humane Society for having horses loose on the highway.

PROCEDURAL BACKGROUND

The preliminary hearing was held October 22, 1992. At the conclusion thereof the matter was continued until December 29, 1992, "so that the parties could brief the merits." At the December 29 hearing the parties orally argued whether a holding order should issue. When the petition was initially filed, we were not provided with copies of the post-hearing briefs, or of the transcript of oral argument when petitioners were held to answer. "In the absence of a transcript the reviewing court will have no way of knowing in many cases what grounds were advanced, what arguments were made and what facts may have been admitted, mutually assumed or judicially noticed at the hearing." (Lemelle v. Superior Court (1978) 77 Cal.App.3d 148, 156, 143 Cal.Rptr. 450.) At the conclusion of oral argument the magistrate held both petitioners to answer to the charge of involuntary manslaughter, but declined to hold them to answer to the violation of section 399.

The People refiled both charges against both petitioners in the information. Petitioners moved to dismiss under section 995. The superior court granted the motion as to petitioner Shipley on the section 399 charge only, on the theory that the section applied to the owner of an animal and the horses were owned by the Ranch as a corporation, not by petitioner Shipley as an individual. In all other respects the motion was denied.

Petitioners sought review in this court by a petition for writ of prohibition. (§ 999a.) The petition was not accompanied by the post-hearing briefs or the transcript of the final hearing in the municipal court; likewise, the petition did not include the reporter's transcript of the hearing on the section 995 motion in superior court.

The importance of a transcript cannot be understated, as indicated in the passage from Lemelle, quoted above. Furthermore, in the case of a preliminary hearing, a reporter's transcript is necessary to determine whether the magistrate made factual findings under Jones v. Superior Court (1971) 4 Cal.3d 660, 94 Cal.Rptr. 289, 483 P.2d 1241, which would bind this court as well as the superior court. (Id., at p. 667, 94 Cal.Rptr. 289, 483 P.2d 1241.)

Despite the fact that both Lemelle and Sherwood have been the law for several years, and despite the fact that rule 56 spells out the need for a transcript in no uncertain terms, all too often writ petitions arrive absent this crucial component of the record. Fairly often, as was the case here, the petition recites that the transcript will be filed contemporaneously with the petition, but the transcript never arrives. Given the vast volume of petitions for extraordinary writs and the need for a prompt decision--such as where, as here, a petition seeks a stay of an imminent felony trial--this court is not in the habit of holding petitions until errant transcripts find their way to the courthouse, absent the requisite declaration from counsel informing us when the transcript was ordered and when it is expected to arrive. (Rule 56(c)(4).)

Accordingly, we summarily denied the petition with citation to Sherwood and rule 56(c)(4). In his unverified petition for review, petitioners' counsel stated that his "messenger inadvertently failed to file" a copy of the transcript. Counsel requested the Supreme Court to consider the transcript under rule 28(e)(6). ³ The Court did so, and granted review. Rather than transfer the matter to this court for reinstatement and reconsideration of the merits on a complete record, the Court directed us to issue an alternative writ. At this juncture the record was still incomplete due to the absence of the municipal court briefs and transcript discussed above....