People v. Farley

• Decision Date: 11 August 1971
• Docket Number: Cr. 8915
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Charles Hubert FARLEY, Defendant and Appellant.

Page 478

96 Cal.Rptr. 478

19 Cal.App.3d 215

PEOPLE of the State of California, Plaintiff and Respondent, v. Charles Hubert FARLEY, Defendant and Appellant.

Cr. 8915.

Court of Appeal, First District, Division 2, California.

Aug. 11, 1971.

Elmer M. Ballard, San Francisco, for appellant.

Evelle J. Younger, Atty. Gen. of California, Robert R. Granucci, James B. Cuneo, Deputy Attys. Gen., San Francisco, for respondent.

KANE, Associate Justice.

Charles Hubert Farley appeals from a judgment entered following nonjury trial convicting him of selling and possessing marijuana and selling LSD.

In mid-October 1966, Michael Waltmon, operating under direction of the State Bureau of Narcotic Enforcement ('Bureau'), became acquainted with appellant. After discussing the possibility of selling narcotic items to Waltmon, appellant showed him quantities of marijuana, LSD, and various pills.

On December 7, 1966, by prearrangement, Waltmon and Bureau Agent Melvin Cozzalio met appellant and an acquaintance, Terrance Esser, at a roadside restaurant in Vallejo. In the restaurant parking lot Waltmon entered appellant's vehicle and for $180 purchased from him a sack, later determined to contain 64.8 grams of marijuana and 50 capsules of LSD.

The same parties again met by prearrangement at the restaurant on December 15, 1966. During the course of discussion in the restaurant cocktail lounge, appellant and Waltmon who had been furnished $390 of state money left together, returning approximately 25 minutes later. At this point the four men went outside to appellant's vehicle from which appellant removed a brown paper bag which he handed to Waltmon. Waltmon in turn delivered it to Agent Cozzalio. The contents of the bag contained 384.5 grams of marijuana and 100 capsules of LSD.

Finally, after a series of telephone conversations with appellant, Agent Cozzalio arranged to meet him at another Vallejo roadside restaurant on the evening of December 30, 1966. After a brief discussion in the restaurant's cocktail lounge, they proceeded to appellant's vehicle, where Cozzalio handed appellant $620 and received in return what was later determined to be 5 pounds 13 1/2 ounces of marijuana, .42 grams of hashish and 50 capsules of LSD. By prearranged signal, appellant was then arrested. A cigarette was discovered in appellant's jacket which was later determined to contain marijuana.

Dismissal of Charges Omitted From Commitment Order

By means of two complaints containing a total of seven counts, appellant, together with Esser, was charged with sale of marijuana and LSD on December 7, December 15, and December 30, 1966. He was also charged with possession of marijuana on December 30, 1966. At the conclusion of the preliminary hearing, the magistrate ordered appellant and Esser held to answer for the transactions occurring on December 15 and 30, but ordered that both counts respecting the transaction of December 7 be dismissed. In so doing, the magistrate stated, 'I just feel, after the hearsay is stricken, the evidence that goes to those is insufficient,' and made the following finding: 'With reference to count 1 and count 2, which refer to the transaction as alleged to have occurred on December 7, 1966, I will make a finding that there is not reasonable and probable cause with reference to those sections and order that they be dismissed.' This dismissal was reflected in the commitment order signed by the magistrate.

Nevertheless, the information filed against appellant and Esser contained counts accusing them of selling marijuana and LSD on December 7, 1966. Appellant's motion to dismiss those counts, pursuant to Penal Code section 995, was denied. After nonjury trial, appellant was convicted of all counts charged.

Appellant now contends that inclusion in the information of the same accusations which were expressly dismissed by the committing magistrate renders those portions of the information invalid. Respondent argues that Penal Code section 739 and cases interpreting it authorize inclusion of such charges in the information.

Our resolution of this issue is aided by the rationale of a recent unanimous decision of the state Supreme Court. In Jones v. Superior Court (1971) 4 Cal.3d 660, 94 Cal.Rptr. 289, 483 P.2d 1241, the court reviewed the judicial analysis of the potential conflict between section 8 of article I of the California Constitution ¹ and Penal Code section 739 ² and concluded the rule to be 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 (Pen.Code, § 739) and (2) that the offense 'arose out of the transaction which was the basis for the commitment' on a related offense. (Citations.)' (Pp. 664--665, 94 Cal.Rptr. p. 291, 483 P.2d p. 1243.)

In Jones the defendants were charged by a complaint with the offenses of rape, oral copulation and sodomy. At the conclusion of a three-day full-scale preliminary hearing at which the defendants testified, the magistrate made findings of fact to the effect that the victim consented to intercourse and that neither oral copulation nor sodomy had taken place. ³ Those counts were dismissed, but the defendants were held to answer to the charge of 'statutory' rape which, although not charged in the complaint, was shown by the evidence.

Thereafter the district attorney filed an information containing the original charges, i.e., rape, oral copulation and sodomy. It did not, however, charge 'statutory' rape.

A denial of the defendants' motion to set the information aside under Penal Code section 995 prompted the petition for a writ of prohibition. In granting prohibition, the Supreme Court speaking through Justice Burke made it clear that the pivotal reason for its decision was that the magistrate had made 'material factual findings' which negated any possible conclusion that the offenses charged had, in fact, been committed.

However, the court in Jones affirmed its earlier decisions, as well as Court of Appeal opinions holding that a magistrate's legal conclusion that 'the evidence failed to show probable cause that the offense had been committed' can be challenged by the district attorney by means of including additional charges in the information so long as that challenge is made 'within the context of the magistrate's findings on the evidence.' (Jones v. Superior Court, supra, at pp. 665--666, 94 Cal.Rptr. p. 292, 483 P.2d p. 1244.)

From the foregoing rationale we perceive the practical rule to be that in cases where the magistrate makes factual findings which are fatal to the asserted conclusion that a particular offense was committed, the district attorney may not recharge that offense in the information. A clear example of this would be where the magistrate expresses disbelief of a witness whose testimony is essential to the establishment of some element of the corpus delicti.

Where, however, the magistrate either expressly or impliedly accepts the evidence and simply reaches an ultimate legal conclusion therefrom--i.e., whether or not such evidence adds up to reasonable cause that the offense had been committed--such conclusion is open to challenge by inclusion in the information which action is thereafter subject to attack in the superior court under Penal Code, section 995, and ultimately to appellate review.

In the case at bench the magistrate did not make factual findings. Rather, he concluded generally that the 'evidence * * * is insufficient' and that the lack of direct evidence of a sale on December 7, 1966 placed him in the position of speculating. We have carefully reviewed the transcript of the preliminary hearing and have concluded that the magistrate was in error in finding a lack of reasonable and probable cause that the offenses alleged in Counts I and II had been committed on December 7, 1966.

The evidence at the preliminary hearing shows that Agent Cozzalio and Waltmon met at the agent's Sacramento office on December 7, 1966, at which time Waltmon was strip-searched to verify that he had neither money nor contraband on his person. He was then supplied money by the agent with whom he drove to the Vallejo restaurant rendezvous where, while being observed by Agent Cozzalio, he entered appellant's automobile. Appellant moved his car next to the agent's car which appellant and Waltmon then entered. After some discussion Waltmon and appellant returned to the latter's vehicle. Waltmon then came back to Cozzalio's vehicle, obtained some additional money from the agent, returned to appellant's car and once more came back to the agent from whom he got an additional $5. Waltmon then went back to appellant's vehicle, returned again to Cozzalio and handed the agent two tinfoil-wrapped packages and some capsules later identified as containing marijuana and LSD respectively. Waltmon was strip-searched again--the results confirming he had neither money nor contraband on his person.

This summary of the evidence amply supports the charges of sale of marijuana (Count I) and sale of LSD (Count II) on December 7, 1966. Probable cause is established if a man of ordinary caution or prudence would be led to believe and conscientiously entertain a strong suspicion of a person's guilt. (Taylor v. Superior Court (1970) 3 Cal.3d 578, 582, 91 Cal.Rptr. 275, 477 P.2d 131.)

The record also reflected the prior discussions between appellant and Waltmon, display of samples of marijuana, LSD and other pills by appellant to Waltmon, as well as the fact that the December 7 meeting was prearranged for the precise purpose of a sale. Added to this evidence are the subsequent transactions on December 15 and December 30, 1966, each of a similar nature to that of December 7, 1966. The magistrate expressed concern because there were two occupants (appellant and Esser) in appellant's car at the time of the alleged sale on December 7, 1966, and that ...