People v. Henson

• Decision Date: 19 October 2018
• Docket Number: F075101
• Citation: 28 Cal.App.5th 490,239 Cal.Rptr.3d 305
• Parties: The PEOPLE, Plaintiff and Appellant, v. Cody Wade HENSON, Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

28 Cal.App.5th 490

239 Cal.Rptr.3d 305

The PEOPLE, Plaintiff and Appellant,

v.Cody Wade HENSON, Defendant and Respondent.

F075101

Court of Appeal, Fifth District, California.

Filed October 19, 2018

Lisa A. Smittcamp, District Attorney, Robert Whalen, Chief Deputy District Attorney, and Douglas O. Treisman, Deputy District Attorney, for Plaintiff and Appellant.

Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Respondent.

DETJEN, Acting P.J. Penal Code section 954 provides, in pertinent part: "An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated."¹ Section 949 provides, in part: "The first pleading on the part of the people in the superior court in a felony case is the indictment, information, or the complaint in any case certified to the superior court under Section 859a."

When a defendant is held to answer on charges brought in separate cases following separate preliminary hearings, do the People need the court’s permission to file a unitary information, covering the charges in both those cases, as their first pleading? Reading the foregoing statutes together, we conclude that, where the charges meet the requirements set out in section 954, the answer is no. In that situation, whether to file a unitary information covering all charges, or a separate information for each case, is a matter of prosecutorial discretion. If the defendant believes the inclusion of all charges in a unitary information prejudices him or her, he or she may move for severance of counts.

In this case, the defendant challenged the inclusion of all counts in a unitary information by means of a motion to set aside the information pursuant to section 995. The judge agreed the charges could not be joined without the court’s permission, and set aside the information with respect to the charges that arose in one of the two cases covered by the information. In so doing, the judge deliberately ignored half of the record before him. He erred in his interpretation of the controlling law and in his ruling. The People having appealed, we reverse and remand for further proceedings.

PROCEDURAL HISTORY

On March 7, 2016, a complaint was filed in Fresno County Superior Court case No. F16901499 (case 499), charging Cody Wade Henson (defendant) with unlawfully driving or taking a vehicle after having suffered three prior felony theft convictions involving vehicles (§ 666.5; Veh. Code, § 10851, subd. (a) ; count 1, a felony), receiving stolen property, to wit, a motor vehicle, after having suffered three prior felony theft convictions involving vehicles (§§ 496d, subd. (a), 666.5; count 2, a felony), resisting, obstructing, or delaying a peace officer or emergency medical technician (§ 148, subd. (a)(1); count 3, a misdemeanor), and possessing burglary tools (§ 466; count 4, a misdemeanor). The offenses all were alleged to have occurred on March 4.² Defendant was further alleged to have served two prior prison terms. (§ 667.5, subd. (b).)

Defendant was arraigned on the complaint on March 8. The public defender’s office was appointed to represent defendant, who entered pleas of not guilty to all charges and denied all special allegations. At some point, defendant was released from custody after posting a surety bond. After several continuances, the preliminary hearing was set for May 24.

On May 19, a complaint was filed in Fresno County Superior Court case No. F16903119 (case 119), charging defendant with unlawfully driving or taking a vehicle after having suffered three prior felony theft convictions involving vehicles (§ 666.5; Veh. Code, § 10851, subd. (a) ; counts 1 & 3, both felonies), receiving stolen property, to wit, a motor vehicle, after having suffered three prior felony theft convictions involving vehicles (§§ 496d, subd. (a), 666.5; counts 2 & 4, both felonies), and resisting, obstructing, or delaying a peace officer or emergency medical technician (§ 148, subd. (a)(1); count 5, a misdemeanor). The offenses all were alleged to have occurred on May 17. Defendant was further alleged to have served two prior prison terms (§ 667.5, subd. (b) ), and to have committed the current offenses while released on bail in case 499 (§ 12022.1).

Arraignment on the complaint originally was set for May 20. On that date, the public defender’s office was appointed to represent defendant and, at defense request, the arraignment was continued to May 24, so the matter could be heard with defendant’s other cases. On May 24, a conflict was declared, the public defender’s office was relieved, and conflict counsel was appointed for defendant. Defendant was then arraigned, and entered pleas of not guilty to all charges and denied all special allegations.

The preliminary hearings in both cases subsequently were continued multiple times, primarily at defense request. The preliminary hearing in case 119 eventually took place on November 16 before a magistrate. Defendant was held to answer, and arraignment was set for December 1. The preliminary hearing in case 499 was initially set for November 16, but was continued because of witness availability issues. That hearing took place on November 22 before a magistrate. Defendant again was held to answer, and arraignment was set for the same time and department as case 119.

On November 29, the People attempted to file with the clerk’s office an information bearing both case numbers, with case 119 designated "Lead." The information alleged most of the charges and enhancements that were contained in the original complaints, with counts 1 through 4 consisting of the charges from case 499, and counts 5 through 7 consisting of the charges from case 119. The pleading apparently was rejected, as the file stamp bearing the date of November 29 was crossed out by hand and initialed. The information was then filed on December 1. Handprinted above "INFORMATION" was the word "CONSOLIDATED."³

Appearing on behalf of defendant on December 1, were conflict counsel in case 119, and the public defender’s office in case 499.⁴ The deputy public defender objected to consolidation of the felony cases into a single information and stated she would be filing a severance motion. She also requested a one-week continuance to make a conflict determination. Arraignment was continued for one week.

At the continued hearing on December 8, conflict counsel objected to the People having combined two cases, one in which conflict counsel represented defendant, and the other in which defendant was represented by the public defender’s office. Counsel stated she did not want to arraign defendant without lodging an objection to the cases being put together. The arraignment judge asked if she was filing a demurrer or what she was going to do. He noted there were only certain things she could do at that stage of the proceedings. The deputy public defender stated that because of the way in which the information had been filed, her office needed to "conflict off" the case. She explained that the information now included a case in which her office had already declared a conflict, thereby creating a conflict for the entire "new" case.

Conflict counsel asked whether the arraignment judge was willing to hear her objection to consolidation at that hearing. The People took the position that if defense counsel wished to file a motion objecting to the single information being filed, the People would agree to continue the arraignment to afford that opportunity, but an oral objection was not legally appropriate. When conflict counsel pointed out that the People never filed a motion to consolidate, the arraignment judge responded: "That’s correct but there is a Penal Code Section and I’m not pretending to make a ruling here because frankly I don’t know. There is a Penal Code Section that allows the People to file the pleadings prior to arraignment without leave of court, is there not?" The judge agreed to hear the motion that day if counsel so desired, but the matter ultimately was continued for another week.

At the continued hearing on December 15, conflict counsel cited California Rules of Court, rule 3.350(a)(1)(C) for the proposition a notice of motion to consolidate must be filed in each case sought to be consolidated.⁵ She stated she had also reviewed section 1009, permitting an information to be amended without leave of court, but noted an accusation could not be amended so as to charge an offense not shown by the evidence taken at the preliminary hearing. Counsel argued that because there were separate preliminary hearings in separate cases, neither contained evidence demonstrating offenses contained in the other.

The arraignment judge asked how, procedurally, counsel intended to get that issue in front of the court at an arraignment hearing, in light of the fact section 1002 only permitted a defendant to enter a demurrer or a plea. The judge stated he was "not unsympathetic with the merits of this situation," but he did not know procedurally how the issue could be gotten in front of the court except by either entering a plea and filing a motion to sever, or by demurring and arguing there was improper joinder under section 954, which in effect was the same thing as a severance motion. Conflict counsel asked the court not to accept the consolidated information as filed, because it was improper. When she was unable to cite authority other than the Rules of Court, the arraignment judge denied the motion to refuse to accept the filing of the information. The public defender’s office then declared a conflict as to case 499, and conflict counsel was appointed. Defendant was arraigned on the information, and the judge set a trial date "[o]n case ending...