People v. McGowan

CourtCalifornia Court of Appeals
Citation195 Cal.Rptr.3d 312,242 Cal.App.4th 377
Decision Date19 November 2015
Docket NumberB263026
Parties The PEOPLE, Plaintiff and Appellant, v. Douglas Lee MCGOWAN, Defendant and Respondent.

242 Cal.App.4th 377
195 Cal.Rptr.3d 312

The PEOPLE, Plaintiff and Appellant,
Douglas Lee MCGOWAN, Defendant and Respondent.


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

Filed November 19, 2015
As Modified December 8, 2015

Marsha Jones Moutrie, City Attorney, Terry L. White, Chief Deputy City Attorney, Jenna K. Grigsby, Deputy City Attorney, for Plaintiff and Appellant.

Ronald L. Brown, Public Defender, Albert J. Menaster, Head Deputy Public Defender, Stephanie Choi, Deputy Public Defender, for Defendant and Respondent.


242 Cal.App.4th 379

Penal Code section 9911 permits an in-custody defendant to require the arraigning magistrate to determine whether there is probable cause to believe the defendant committed a public offense. (§ 991, subd. (a).) If the magistrate finds no such probable cause, the defendant is entitled to dismissal of the complaint. (§ 991, subd. (d).) The issue raised in this appeal is

195 Cal.Rptr.3d 314

whether section 991 vests the trial court with authority to dismiss only some of the charges for lack of probable cause, or whether it must dismiss the complaint in its entirety or not at all. We conclude that section 991 permits the court to dismiss individual charges from the complaint.


Defendant Douglas Lee McGowan was arrested at 1:30 a.m. on May 9, 2014. At the time, he was wrapped in a blanket and seated underneath the Santa Monica Pier. He was surrounded by various personal items, including two milk crates. The People filed a complaint charging him with (1) camping in a prohibited public place (Santa Monica Mun.Code, § 4.08.095, subd. (a)), (2) possession of a milk crate (§ 565), and (3) loitering under the Santa Monica Pier (Santa Monica Mun.Code, § 3.36.100). The defense filed

242 Cal.App.4th 380

a motion to dismiss all charges pursuant to section 991. At argument, the trial court ordered further briefing on whether it had the authority to dismiss only two of the three counts. It ultimately dismissed counts one and three, finding probable cause to support the charge in count two only, possession of a milk crate. In a published decision, the Appellate Division of the Superior Court of Los Angeles County reversed, holding that section 991 does not vest the trial court with authority to dismiss anything less than the entire complaint. We ordered jurisdiction of the matter transferred to this court pursuant to our authority under California Rules of Court, rule 8.1002.

At oral argument, the parties informed the court that the charges against McGowan have been resolved, but that he remained in custody for some time pending resolution, as he was unable to post bond. Therefore, this matter has been rendered moot. However, "[w]here questions of general public concern are involved, particularly in the area of the supervision of the administration of criminal justice, we may reject mootness as a bar to a decision on the merits." (In re Walters (1975) 15 Cal.3d 738, 744, 126 Cal.Rptr. 239, 543 P.2d 607 (Walters ); see In re Fluery (1967) 67 Cal.2d 600, 601, 63 Cal.Rptr. 298, 432 P.2d 986.)


A. Standard of Review and Rules of Statutory Construction

On appeal, questions of law and statutory interpretation are reviewed de novo. (People v. Kurtenbach (2012) 204 Cal.App.4th 1264, 1276, 139 Cal.Rptr.3d 637.) " ‘Under settled canons of statutory construction, in construing a statute we ascertain the Legislature's intent in order to effectuate the law's purpose. [Citation.] We must look to the statute's words and give them their usual and ordinary meaning. [Citation.] The statute's plain meaning controls the court's interpretation unless its words are ambiguous.’ [Citation]." (People v. Robinson (2010) 47 Cal.4th 1104, 1138, 104 Cal.Rptr.3d 727, 224 P.3d 55.) "If, however, the language supports more than one reasonable construction, we may consider ‘a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part.’ [Citation.] Using these extrinsic aids, we ‘select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences.’ [Citation.]" (People v. Sinohui (2002) 28 Cal.4th 205, 211–212, 120 Cal.Rptr.2d 783, 47 P.3d 629.)

195 Cal.Rptr.3d 315
242 Cal.App.4th 381

B. Penal Code Section 991

Section 991 states in part: "(a) If the defendant is in custody at the time he appears before the magistrate for arraignment and, if the public offense is a misdemeanor to which the defendant has pleaded not guilty, the magistrate, on motion of counsel for the defendant or the defendant, shall determine whether there is probable cause to believe that a public offense has been committed and that the defendant is guilty thereof. [¶] ... [¶] ... (d) If, after examining these documents, the court determines that there exists probable cause to believe that the defendant has committed the offense charged in the complaint, it shall set the matter for trial. [¶] If the court determines that no such probable cause exists, it shall dismiss the complaint and discharge the defendant. [¶] (e) Within 15 days of the dismissal of a complaint pursuant to this section the prosecution may refile the complaint."

1. Plain Meaning

The People argue that the statute unambiguously authorizes the court to dismiss "the complaint," not individual counts, and not anything short of the entire complaint. We disagree. The singular term "the complaint" is not defined, and throughout the Penal Code, "the singular number includes the plural, and the plural the singular." (§ 7.) The Supreme Court's interpretation of other singular terms—such as "an action" or "the indictment or information"—to permit dismissal of individual counts in related Penal Code provisions is further evidence that section 991's use of the singular term "the complaint" is not unambiguously dispositive.

Section 1385, subdivision (a) permits a trial court to dismiss "an action" in furtherance of justice. The statute is silent as to the dismissal of individual charges in an action. Nonetheless, in interpreting this provision, the Supreme Court has stated that "[t]he authority to dismiss the whole includes, of course, the power to dismiss or ‘strike out’ a part. [Citation.]" (People v. Burke (1956) 47 Cal.2d 45, 51, 301 P.2d 241, disapproved on other grounds in People v. Sidener (1962) 58 Cal.2d 645, 647, 25 Cal.Rptr. 697, 375 P.2d 641.) To this end, the high court has "consistently interpreted ‘action’ to mean the ‘individual charges and allegations in a criminal action’ [citations] ..." (In re Varnell (2003) 30 Cal.4th 1132, 1137, 135 Cal.Rptr.2d 619, 70 P.3d 1037 ; see also People v. Casper (2004) 33 Cal.4th 38, 45, 14 Cal.Rptr.3d 43, 90 P.3d 1203 ["Because ‘[t] he authority to dismiss the whole includes, of course, the power to dismiss or "strike out" a part’ [citation], the trial court's power under section 1385 to dismiss the entire action necessarily includes the power to dismiss a part of the action"]; People v. Superior Court (Romero ) (1996) 13 Cal.4th 497, 508, 53 Cal.Rptr.2d 789, 917 P.2d 628 ["we have construed section 1385(a) as permitting a judge to dismiss not only an entire case, but also a

242 Cal.App.4th 382

part thereof"]; People v. Campos (2011) 196 Cal.App.4th 438, 450, 126 Cal.Rptr.3d 274 ["This power to dismiss [under section 1385] extends to the entire action as well as to individual charges and allegations in the action"].)

Section 1385 is not the only such example. While section 991 controls probable cause determinations in misdemeanor cases, section 995 governs probable cause determinations in felony cases. Like section 991, section 995 employs the singular form and provides that "the indictment or information shall be set aside" if the trial court concludes a defendant was indicted or committed without probable cause. (§ 995, subd. (a).) It, too, has been interpreted to permit the setting aside of a portion of the indictment or information.

195 Cal.Rptr.3d 316

(See People v. Superior Court (Mendella ) (1983) 33 Cal.3d 754, 761, fn. 6, 191 Cal.Rptr. 1, 661 P.2d 1081 (Mendella ) ["It is, of course, well settled that a defendant's challenge under section 995 need not be directed to the entire information but may instead attack only portions thereof"], superseded by statute on other grounds as stated in In re Jo va n B. (1993) 6 Cal.4th 801, 814, fn. 8, 25 Cal.Rptr.2d 428, 863 P.2d 673 ; People v. Fraijo (1977) 78 Cal.App.3d 977, 981, 144 Cal.Rptr. 424 [noting...

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