Munoz v. Superior Court of Alameda Cnty.

• Citation: 45 Cal.App.5th 774,259 Cal.Rptr.3d 247
• Decision Date: 26 February 2020
• Docket Number: A157445
• Court: California Court of Appeals
• Parties: Matthew Jesse MUNOZ, Petitioner, v. The SUPERIOR COURT OF ALAMEDA COUNTY, Respondent; The People, Real Party in Interest.

45 Cal.App.5th 774

259 Cal.Rptr.3d 247

Matthew Jesse MUNOZ, Petitioner,

v.The SUPERIOR COURT OF ALAMEDA COUNTY, Respondent;

The People, Real Party in Interest.

A157445

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

Filed February 26, 2020

Bay Area Criminal Law, David J. Cohen and Alexander P. Guilmartin, San Francisco, for Petitioner.

Nancy E. O’Malley, District Attorney, Alex Hernandez, Deputy District Attorney for Respondent.

Xavier Becerra, Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Seth K. Schalit, Supervising Deputy Attorney General, Lisa Ashley Ott, Deputy Attorney General for Real Party in Interest.

NEEDHAM, J.

Petitioner Matthew Jesse Munoz was charged with conspiracy to commit murder based on statements he made that were captured on a police wiretap. ( Pen. Code, §§ 182, 187.)¹ He argues the trial court should have granted his motion to set aside the information under section 995 because the corpus delicti rule prohibited consideration of a defendant’s own statements absent the presentation of independent evidence regarding the elements of the crime. We disagree. The statements at issue here were part of the crime itself, and were not subject to the corpus delicti rule. ( People v. Carpenter (1997) 15 Cal.4th 312, 63 Cal.Rptr.2d 1, 935 P.2d 708 ( Carpenter ), overruled on other grounds in People v. Diaz (2015) 60 Cal.4th 1176, 1190–1191, 185 Cal.Rptr.3d 431, 345 P.3d 62 ( Diaz ).)

I. BACKGROUND

A criminal complaint was filed charging petitioner and codefendants Humberto Villegas and Michael Porter with conspiracy to commit murder accompanied by an allegation that the conspiracy was committed for the benefit of a criminal street gang and that petitioner had suffered certain prior convictions. ( §§ 182, subd. (a)(1), 187, 186.22, subd. (b)(2), 1170.12.) A preliminary hearing was held on March 8 and 9, 2018, at which time the following evidence was adduced:

In January, the Hayward Police Department was working on Operation Winter Storm, a criminal investigation of the East Las Palmas (ELP) street gang. Petitioner and codefendant Villegas were ELP gang members and codefendant Porter was an associate of the gang.

Villegas was one of the targets of the investigation and a wiretap was set up on his phone. On January 30, petitioner was in custody and told Villegas during a telephone call, "That nigga that Slug live with snitched on Chippa."² "Chippa" referred to Porter, who was petitioner’s cellmate; "Slug" was the rap name of Douglas Bagshaw. There was a discussion of a person named "Big G" having put a price on Bagshaw’s head. There was also a conversation about Bagshaw having kicked over a candle at a memorial service, which upset Big G.

Later that day, Villegas had a conversation with Dezmon Wren, in which he told Wren that "Mickey" (petitioner) and "Chip Dollas" (Porter) wanted "[Bagshaw’s] shit toasted" and "want[ed] him on the shirt" and wanted them "to handle it." These were all references to killing Bagshaw.

Villegas received a text from petitioner on February 2 that said, "Tap in brother. That shit gonna start at 9 tonight. Let’s make sure everything is on point." Petitioner and Villegas spoke later that day and petitioner told Villegas, "That nigga, next time he pops up, nigga gotta be on a R.I.P. T-shirt, nigga."

Bagshaw was scheduled to perform that night at the Fog Line Bar and Grill (the Fog Line) and went there wearing a yellow jersey. The police thought Bagshaw’s life was in danger and had him notified of the threat. Police units went to the Fog Line and stationed themselves in a position of high visibility. Officers located a flier that was for a welcome home celebration for a man named Moochie and advertised, " ‘Live Performances with Slug.’ "

In a call placed at 7:15 p.m. on February 2, petitioner asked Villegas, who lived about a mile from the Fog Line, whether he was ready to go and Villegas said he was right down the street and "for sure" would show up. Petitioner told Villegas, "Nigga, I want you all niggas to air that motherfucker out nigga, straight up," which referred to shooting the place up. A text placed at 8:54 p.m. to Villegas’s phone from petitioner’s phone read, "Sup brother is that shit cracking or wat??" At 8:54 p.m., a message placed from Villegas’s phone to petitioner’s phone read, "Ima wiggle by rn," "rn" meaning "right now." At 8:55 p.m., a text from petitioner’s phone to Villegas’s read, "Aite Ima check out some shit see if anything posted or something." Villegas responded, "Ok" at 9:02 p.m.

At 9:28 p.m., a text from petitioner’s phone to Villegas’s read, "That shit cracking or what." Villegas responded, "Bootsie," at 9:28 p.m., meaning "stupid." At 9:29 p.m., Villegas sent a message to petitioner’s phone that read, "There cops across the st." Also at 9:29 p.m., he sent a text to petitioner’s phone stating, "I’m looking for his whip (car). We steaking [sic] out rn." A message sent from petitioner’s phone to Villegas’s at 9:30 p.m. stated, "Niggas prolly tryna sho up a lil late to make an entrance they posted in ig [Instagram] to see who’s going they gone fasho be up there." Villegas’s phone sent a text at 9:30 p.m. stating, "Yee, I’m posted here smoking down the way." At 9:31 p.m., Villegas’s phone sent a text that said, "Lookn for yellow boy." A text from petitioner’s phone said "Ganggang." The next morning at 7:31 a.m., a text placed from petitioner’s phone to Villegas’s asked, "Nun happen??"

No shooting occurred at the Fog Line on February 2. One of the officers on surveillance at the bar saw a Hyundai Sonata associated with Villegas drive by at about 20 miles per hour at 9:08 p.m. The car was registered to Villegas’s mother, and Villegas also had a Jeep Cherokee.

Based on this testimony, the magistrate held petitioner and his codefendants to answer on the charges.³ Petitioner filed a motion to set aside the information under section 995, alleging (1) the evidence of petitioner’s identity was insufficient; (2) the evidence was insufficient to support the gang enhancement; (3) the phone calls and text messages were not properly authenticated; and (4) the People did not satisfy the corpus delicti rule because they relied on the defendants’ extrajudicial statements to establish conspiracy. On May 28, 2019, following a hearing on the motion, it was denied. Petitioner filed a petition for writ of mandate and/or prohibition in this Court on the same grounds as the section 995 motion, which we summarily denied on July 29, 2019. Petitioner timely filed a petition for review.

On October 16, 2019, the Supreme Court granted the petition for review and transferred the case to this Court, "with directions to vacate its order denying the petition for writ of mandate/prohibition and to issue an order to show cause directing respondent court to show cause why relief should not be granted based on petitioner’s claim that the evidence at the preliminary hearing was insufficient to satisfy the corpus delicti rule." (Munoz v. Superior Court , review granted Oct. 16, 2019, S257363.) We have complied with this directive and have received and considered the People’s return and petitioner’s reply to the return.⁴

II. DISCUSSION

A. Standard of Review

"The function of the magistrate at a preliminary hearing is to determine whether there is ‘sufficient cause’ to believe defendant is guilty of the charged offense. (§§ 871, 872, subd. (a).)" ( People v. Ramirez (2016) 244 Cal.App.4th 800, 813, 198 Cal.Rptr.3d 318.) "Sufficient cause" equates to " ‘reasonable and probable cause.’ " ( Ibid . ) " ‘Evidence that will justify a prosecution need not be sufficient to support a conviction. [Citations.] " ‘Probable cause is shown if a [person] of ordinary caution or prudence would be led to believe and conscientiously entertain a strong suspicion of the guilt of the accused.’ " An information will not be set aside or a prosecution thereon prohibited if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it.’ " ( People v. Garcia (1985) 166 Cal.App.3d 1056, 1065, 212 Cal.Rptr. 822.) "This is an ‘exceedingly low’ standard ...." ( People v. Superior Court (Sahlolbei) (2017) 3 Cal.5th 230, 245, 219 Cal.Rptr.3d 436, 396 P.3d 568.)

When reviewing the denial of a section 995 motion, we disregard the ruling of the superior court and directly review the decision of the magistrate holding the defendant to answer. ( Lexin v. Superior Court (2010) 47 Cal.4th 1050, 1071–1072, 103 Cal.Rptr.3d 767, 222 P.3d 214.) Our review is de novo insofar as the ruling rests on issues of statutory interpretation; to the extent it rests on a consideration of the evidence adduced, we draw all inferences in favor of the information. ( Id . at p. 1072, 103 Cal.Rptr.3d 767, 222 P.3d 214.)

B. Corpus Delicti Rule

"In every criminal trial, the prosecution must prove the corpus delicti, or the body of the crime itself—i.e., the fact of injury, loss, or harm, and the existence of a criminal agency as its cause. In California, it has traditionally been held, the prosecution cannot satisfy this burden by relying exclusively upon the extrajudicial statements, confessions, or admissions of the defendant." ( People v. Alvarez (2002) 27 Cal.4th 1161, 1168–1169, 119 Cal.Rptr.2d 903, 46 P.3d 372 ( Alvarez ); accord, People v. Gutierrez (2002) 28 Cal.4th 1083, 1127, 124 Cal.Rptr.2d 373, 52 P.3d 572 ( Gutierrez ).) Nor can the corpus delicti be established by the extrajudicial statements of a codefendant. ( Jones v. Superior Court (1979) 96 Cal.App.3d 390, 397, 157 Cal.Rptr. 809 ( Jones ); see People v. Powers-Monachello (2010) 189 Cal.App.4th 400, 407,410, 116 Cal.Rptr.3d 899, ( Powers ).)

The corpus delicti rule "is intended to ensure that one will not be falsely convicted, by his or her untested words alone, of a crime that never happened." ( Alvarez , supra , 27 Cal.4th at p. 1169, 119 Cal.Rptr.2d 903, 46 P.3d 372 ; People v. Ochoa (1998) 19 Cal.4th...