Ondarza v. Superior Court

• Decision Date: 27 May 1980
• Citation: 106 Cal.App.3d 195,164 Cal.Rptr. 892
• Court: California Court of Appeals Court of Appeals
• Parties: Carlos Roque ONDARZA, Petitioner, v. The SUPERIOR COURT OF FRESNO COUNTY, Respondent; The PEOPLE, Real Party in Interest. Civ. 5267.

Page 892

164 Cal.Rptr. 892

106 Cal.App.3d 195

Carlos Roque ONDARZA, Petitioner, v. The SUPERIOR COURT OF FRESNO COUNTY, Respondent The PEOPLE, Real Party in Interest.

Civ. 5267.

Court of Appeal, Fifth District, California.

May 27, 1980.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Charles P. Just, Nancy L. Sweet and David De Alba, Deputy Attys. Gen. , Sacramento, for real party in interest.

OPINION

GEO. A. BROWN, Presiding Justice.

Petitioner, Carlos Roque Ondarza, seeks a pretrial writ of mandate directing the trial court to grant his motion to dismiss (Pen.Code, § 995) and to suppress evidence (Pen.Code, § 1538.5). The motions were heard upon the preliminary hearing testimony and the testimony elicited at the de novo hearing on the motions.

The petitioner was charged by information with two counts of soliciting another to receive stolen property (Pen.Code, § 653f, subd. (a)), five counts of attempting to receive stolen property (Pen.Code, §§ 664/496), and a count of selling and furnishing cocaine (Health & Saf. Code, § 11352).

The evidence sought to be suppressed was seized by the police as a result of a search warrant authorizing the search of petitioner's residence for a Quasar Video-Matic player which was one of the items upon which one of the charges of attempting to receive stolen property was predicated.

A second point raised in the petition is that the trial court should have granted the motion to dismiss the charge of selling cocaine. This contention is grounded upon the assumption that the magistrate at the conclusion of the preliminary hearing determined that there was insufficient evidence to hold appellant to answer on that count. Nevertheless, the district attorney refiled the identical charge in the superior court. Petitioner contends the district attorney was precluded from refiling a charge by the magistrate's factual finding.

FACTS

Officer Santellano, an undercover Fresno police officer, was introduced to petitioner by Robert Larson (petitioner's codefendant) under the sobriquet of "Joe Hernandez." The officer had previously sold a microwave oven to Larson. Santellano testified that Larson introduced petitioner as the man who could help him obtain cocaine. During this initial meeting, Santellano told petitioner that he was interested in buying come cocaine; he further asked petitioner "if he needed anything." In response, petitioner indicated to Santellano that he needed some leather coats.

As a result of their conversation, Santellano sold petitioner a leather coat for $30. In response to an inquiry by Santellano, petitioner stated that he was going to contact an individual in San Jose who could possibly bring him a sample of cocaine. Santellano further indicated that petitioner voiced a desire to obtain a Video-Matic.

During his transactions with petitioner, Santellano repeatedly asked where he could buy cocaine. Petitioner told Santellano he was going to contact a person in San Jose later that night and arrange "to set up some cocaine." During the next morning petitioner gave Santellano a phone number to call in San Jose and told him that the subject's name was Linda. Moreover, petitioner inquired once again about the video tape recorder that Santellano had promised him. Subsequently, Santellano contacted Linda in San Jose and bought from her what was represented as half an ounce of cocaine.

DISCUSSION

The Attorney General raises a preliminary procedural point which can be quickly resolved.

He argues the petition in this court pursuant to Penal Code section 999a is untimely. That section requires that a 999a petition filed in this court "predicated upon the ground that . . . the defendant had been committed on an information without reasonable or probable cause" must be filed within 15 days after the denial of the Penal Code section 995 motion in the trial court. Here 20 days elapsed. The 15-day time limit only bars the contention in a 995 motion that insufficient evidence supported the magistrate's finding of probable cause; it does not bar petitioner's claim that he was illegally committed, which is the basis upon which the petition here is grounded. (Code Civ.Proc., § 1086; Pen.Code, § 1538.5, subd. (i); Guerin v. Superior Court (1969) 269 Cal.App.2d 80, 81, 75 Cal.Rptr. 923; McGonagill v. Superior Court (1963) 214 Cal.App.2d 192, 194-195, 29 Cal.Rptr. 485; cf., Penney v. Superior Court (1972) 28 Cal.App.3d 941, 944, 105 Cal.Rptr. 162.) Accordingly, the petition herein is timely.

Turning first to the sale of cocaine charge (count eight), petitioner initially contends that respondent court lacks jurisdiction to entertain that count because with respect to it petitioner engaged in no criminal activity in Fresno County. The contention must be rejected. As to that count petitioner was charged as aider and abettor to the sale by Linda to Santellano in Santa Clara County. The evidence showed that petitioner made the preliminary arrangements for the transaction in Fresno County, including a telephone call from Fresno County to San Jose. Fresno clearly had jurisdiction. (See People v. Tabucchi (1976) 64 Cal.App.3d 133, 140, 134 Cal.Rptr. 245; Witkin, Cal. Criminal Procedure (1963) Jurisdiction and Venue, § 70, pp. 67-68.)

Petitioner's principal contention with respect to the sale of cocaine charge is that the district attorney improperly charged him with the identical offense in the information, since the magistrate found insufficient probable cause to hold him to answer at the preliminary hearing.

The seminal case of Jones v. Superior Court (1971) 4 Cal.3d 660, 664-665, 94 Cal.Rptr. 289, 483 P.2d 1241, establishes that an information which charges the commission of an offense not named in the commitment order will not be upheld unless (1) the evidence before the magistrate shows that such offense was committed and (2) the offense was transactionally related to offenses forming the basis of the commitment. Jones and its offspring establish that an offense may not be recharged where the magistrate has made factual findings that the evidence is insufficient. However, the magistrate's legal conclusions may be challenged. The distinction was clarified in Pizano v. Superior Court (1978) 21 Cal.3d 128, 133, 145 Cal.Rptr. 524, 527, 577 P.2d 659, 662:

" . . . an offense not named in the commitment order may not be added to the information if the magistrate made factual findings which are fatal to the asserted conclusion that the offense was committed. A clear example of this would be when the magistrate expresses disbelief of a witness whose testimony is essential to the establishment of some element of the corpus delicti. When, however, the magistrate either expressly or impliedly accepts the evidence and simply reaches the ultimate legal conclusion that it does not provide probable cause to believe the offense was committed, such conclusion is open to challenge by adding the offense to the information."

In the case before us, the magistrate's explanation of his refusal to hold petitioner for sale of cocaine demonstrates a legal rather than factual conclusion. The magistrate did not indicate that he thought the testimony of Santellano was incredulous or improbable. Instead, the magistrate voiced a personal opinion that there was insufficient evidence to charge petitioner with a violation of Health and Safety Code section 11352. Since such a determination is a legal conclusion, the district attorney did not impermissibly charge petitioner with having violated Health and Safety Code section 11352 insofar as this prong of the Jones test is concerned.

However, an examination of the second prong of the Jones test compels a conclusion that the sale of cocaine charge was not transactionally related to the offenses forming the basis of the commitment.

The Supreme Court in Parks v. Superior Court (1952) 38 Cal.2d 609, 241 P.2d 521 provided the continuing valid analysis of the transactional requirement. The defendant in Parks was charged by complaint with two counts of grand theft and one count of writing a bad check. One count of grand theft was based on the allegation that defendant obtained a loan from a Mrs. Palmer by misrepresentations; the other grand theft count and bad check count were founded upon a contract with a lumber company from which the defendant obtained possession of lumber and subsequently issued a bad check in payment. The magistrate discharged defendant as to both grand theft counts but held him to answer the bad check allegation; the district attorney, however, filed an information charging all three offenses. The Supreme Court held that defendant was not properly charged with the first grand theft offense since it was unrelated to the transaction on which the commitment order was based. As to the second grand theft count, however, the court stated:

"As indicated herein the district attorney might include a related offense although the magistrate concluded impliedly or otherwise that the evidence did not show probable cause that such offense had been committed. The charges as to the theft of the lumber and the giving of a worthless check in payment thereof were related, arose out of the transaction which was the basis for the commitment and, depending on the evidence, could result in conviction on one charge or the other. The district attorney was therefore within his right to include the grand theft charge in the information if the necessary elements of that offense reasonably appeared from the evidence before the magistrate." (Parks v. Superior Court, supra, 38 Cal.2d at pp. 613-614, 241 P.2d at p. 524.)

The Supreme Court has consistently followed the dictates outlined in Parks over the years. (See People v. Evans (1952) 39 Cal.2d 242, 249, 246 P.2d 636; People v. Downer (1962) 57 Cal.2d 800, 810-811, 22 Cal.Rptr. 347, 372 P.2d 107; People v. Chimel (1968) 68 Cal.2d 436, 443, 67...