People v. Hollins

• Docket Number: A161690
• Decision Date: 08 August 2022
• Parties: THE PEOPLE, Plaintiff and Respondent, v. MICHAEL PETER HOLLINS, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

1

THE PEOPLE, Plaintiff and Respondent, v. MICHAEL PETER HOLLINS, Defendant and Appellant.

A161690

California Court of Appeals, First District, Fifth Division

August 8, 2022

NOT TO BE PUBLISHED

San Mateo County Super. Ct. No. 20-SF-003482A

JACKSON, P. J.

Defendant Michael Peter Hollins appeals from the trial court's judgment after he entered a no contest plea to nine criminal counts in the amended information, including one felony count of assault on a custodial officer, Deputy Sheriff Zachary H (count 1; Pen. Code, § 241.1).^[1] Defendant received a total prison term of four years, which included the two-year middle term on count 1, doubled pursuant to section 1170.12 subdivision (c)(1) for his prior strike convictions. Defendant challenges this sentence as unauthorized because the magistrate did not find probable cause as to count 1 assault on a custodial officer, at the preliminary hearing. Defendant further contends his trial attorney rendered ineffective assistance by failing to move to dismiss count 1 for lack of probable cause pursuant to section 995 subdivision (a)(2)(A) prior to his plea. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On October 22, 2020, the People filed an amended felony information after the trial court granted their motion to consolidate case Nos. 20-NF-007502A and 20-SF-003482A. This amended information charged defendant with: felony assault on a custodial officer, Zachary H., during the performance of his duties (count 1; § 241.1); felony assault on a custodial officer, Michael N., during the performance of his duties (count 2; § 241.1); felony vandalism (count 3; § 594, subd. (b)(1)); misdemeanor damaging jail property (count 4; § 4600, subd. (a)); misdemeanor tampering with a fire alarm or apparatus (count 5; § 148.4, subd. (a)(1)); misdemeanor resisting a peace officer, Nicholas C. (count 6; § 148, subd. (a)(1)); felony resisting an executive officer, Oliver R. (count 7; § 69); violating a restraining order (count 8; § 273.6, subd. (a)); misdemeanor battery on David W. (count 9; § 242); and misdemeanor use of force on a police officer, Scott S. (count 10; § 243, subd. (b)). As to counts 1, 2, 3, and/or 7, it was alleged that defendant had two prior serious or violent felony convictions within the meaning of sections 667, subdivision (d) and 1170.12, subdivision (b). As to counts 1-4, it was alleged that defendant had six prior felony convictions which rendered him ineligible for probation under section 1203, subdivision (e)(4) and that he committed the offenses while out on bail or on his own recognizance (§ 12022.1). Relevant facts are taken from preliminary hearing transcripts.

I. The February 7-8, 2020 Incidents: Maguire Correctional Facility of San Mateo County (Counts 1-3, 6).

On February 7, 2020, two San Mateo County deputy sheriffs, Zachary H. and Michael N., were on duty at the Maguire Correctional Facility (county jail).^[2] When Deputy Michael N. attempted to place a food tray in the food port for defendant's cell, defendant placed his hand in the port, preventing Deputy Michael N. from closing it. The food port, at the level of the deputy's belt, opened just wide enough to allow the food tray to pass through. Defendant, after asking Deputy Michael N. if his body camera was activated, spit at the deputy through the food port. Deputy Michael N. heard defendant make a spitting sound but did not see any spit land on his person or clothing. A short while later, Deputy Michael N.'s colleague Deputy Zachary H., a deputy in training, attempted to close defendant's food port by instructing defendant to remove his hand. Defendant responded by spitting at Deputy Zachary H. Defendant's act was captured on footage from Deputy Michael N.'s body camera. Although Deputy Michael N. did not see defendant's spit land on Deputy Zachary H., he saw defendant spit in the deputy's direction.

The next day, February 8, 2020, Deputy Nicholas C. and his colleagues attempted to move defendant from one jail location to another. Defendant pulled away from them, yelling, and threatened to spit on Deputy Nicholas C., thereby hindering the deputy in the performance of his duties.

II. The November 15, 2019 Incident: County Jail (Counts 4-5).

On November 15, 2019, Officer Vaughn discovered that defendant had broken a fire sprinkler inside one of the jail holding cells. Deputy Grant, who later visited defendant's cell, observed water and feces spewing from the sprinkler. The cost to replace the broken sprinkler was $862.

III. The June 12, 2020 Incident: San Bruno (Counts 7-10).

On June 12, 2020, Officer Oliver R., a peace officer with the San Bruno Police Department, detained defendant, who was out of custody on bail or his own recognizance, after receiving a report that defendant violated a restraining order barring him from being within 100 yards of his sister's San Bruno residence. Due to defendant's threatening and uncooperative behavior, Officer Oliver R. was forced to use a TASER to effectuate this detention. The deputies later brought defendant to a hospital to be medically cleared, but he refused to cooperate with and spat upon a hospital nurse, David W., as well as Scott S., a police officer attempting to escort him.

IV. Plea Deal and Sentencing.

On October 23, 2020, defendant pleaded no contest to all counts except count 7, resisting an executive officer (Oliver R.), which was dismissed at defense counsel's request.

On November 2, 2020, defendant filed a sentencing memorandum asking the court to, inter alia, reduce counts 1-3 to misdemeanors and impose credit for time served on count 1 with concurrent sentences of credit for time served on the remaining counts. Instead, the trial court reduced counts 2-3 to misdemeanors pursuant to section 17, subdivision (b). As to count 1, the court sentenced defendant to the two-year middle term, doubled under section 1170.12, subdivision (c)(1) for a total term of four years. The court denied probation as to the remaining counts and imposed a six-month concurrent term with credit for six months of time served.

On December 22, 2020, defendant timely appealed the judgment and sentence.

DISCUSSION

Defendant argues his two-year sentence on count 1, assault on Deputy Zachary H. (§ 241.1), doubled pursuant to section 1170.12, subdivision (c)(1), is unauthorized and must be vacated because the magistrate at the preliminary hearing did not find probable cause to support it. He further argues that to the extent his attorney failed to move to dismiss count 1 pursuant to section 995, subdivision (a)(2)(A),^[3] he received ineffective assistance of counsel. We address each issue post.

I. Defendant's sentence on count 1 was lawful.

A. Legal and Factual Background.

"' "Evidence that will justify a prosecution need not be sufficient to support a conviction . . . . 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. [Citations.]"' [Citations.] [¶] 'Within the framework of his [or her] limited role, . . . the magistrate may weigh the evidence, resolve conflicts, and give or withhold credence to particular witnesses. [Citation.] In other words, in assisting . . . in his [or her] determination of "sufficient cause," the magistrate is entitled to perform adjudicatory functions akin to the functions of a trial judge.'" (People v. Slaughter (1984) 35 Cal.3d 629, 637 (Slaughter).)

The subject custodial officer, Deputy Zachary H., did not testify at the preliminary hearing regarding his interaction with defendant that formed the basis of count 1. Instead, his colleague Deputy Michael N. described what happened. According to Deputy Michael N., Deputy Zachary H. "attempted to have inmate Hollins pull his hand . . . back in the food port so that way we could secure the food port and continue our dinner distribution, and Deputy [Zachary H.] was standing right in front of the food port and as Deputy [Zachary H.] and inmate Hollins were going back and forth, inmate Hollins proceeded to spit directly onto Deputy [Zachary H.]." When the prosecutor asked whether he actually saw defendant's spit land on Deputy Zachary H., Deputy Michael N. responded he did not but that defendant's act was depicted in footage he later reviewed from his body camera. The prosecutor then asked where the spit landed on Deputy Zachary H. based on Deputy Michael N.'s review of his body camera footage. Deputy Michael N. replied, "In the video it was hard to physically see the spit leaving the mouth onto Deputy [Zachary H.]; however, one presume [sic] that it hit Deputy [Zachary H.]." Deputy Michael N. then confirmed that, while he did not see defendant's spit land on Deputy Zachary H., he did see defendant spit in Deputy Zachary H.'s direction, which appeared to him as if defendant was "spitting at Deputy [Zachary H.]."

Following the preliminary hearing, the magistrate concluded: "I don't find that there is sufficient evidence with respect to Count 1.... [Deputy Michael N.] just was not clear or sure enough on anything related to [Deputy Zachary H.] for the Court to find sufficient evidence that there was an actual spitting action by Mr. Hollins. However, I do find that there is sufficient and probable cause for the reasons already stated that Count 2 was committed and that the defendant did commit it; that Count 3 was committed, albeit as a misdemeanor because the [$]950 threshold was not met; and that Counts 4 and 5 were committed by the defendant. [¶] So, he is held to answer on Counts 2, 3 as a misdemeanor, and 4 and 5." Nonetheless, the prosecution included the charge of assault on a custodial officer (Deputy Zachary H.) as count 1 in the...