People v. Powers-Monachello

• Decision Date: 20 October 2010
• Docket Number: No. A124358.,A124358.
• Citation: 116 Cal.Rptr.3d 899,189 Cal.App.4th 400,10 Cal. Daily Op. Serv. 13, 355
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Appellant, v. Frank Evan POWERS-MONACHELLO et al., Defendants and Respondents.

189 Cal.App.4th 400

116 Cal.Rptr.3d 899

10 Cal. Daily Op. Serv. 13,355

2010 Daily Journal D.A.R. 16,079

The PEOPLE, Plaintiff and Appellant,

v.Frank Evan POWERS-MONACHELLO et al., Defendants and Respondents.

No. A124358.

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

Oct. 20, 2010.

**903 Under Appointment by the First District Appellate Project, Stephen M. Gallenson, Andrian & Gallenson, Santa Rosa, for Defendants and Respondents Frank Powers-Monachello.

Patricia Lea Brisbois, for Dan Edward Scheiner.

Steven Samuel Lubliner, Petaluma, for Dana Daniell Gearardo-Scheiner.

Sonoma County District Attorney's Office, Stephan R. Passalacqua, District Attorney, Robert A. Maddock, Deputy District Attorney, William S. Mount, Deputy District Attorney, Andrew S. Lucas, Deputy District Attorney, for Plaintiff and Appellant The People.

LAMBDEN, J.

*403 The defendants in this case were charged with possession for sale of cocaine and conspiracy to possess cocaine for sale. The Sonoma County District Attorney contends that two different trial judges misapplied the governing law regarding the corpus delicti rule in dismissing the conspiracy count. Appellant urges us to hold that the corpus delicti rule's limitation on the use of defendants' extrajudicial statements has been eliminated from the preliminary examination stage of criminal proceedings. However, we conclude that although the defendants' statements might have been *404 introduced to determine whether they would be held to answer, such statements remained irrelevant until the corpus delicti rule had been otherwise satisfied. Our Supreme Court has not understood the 1982 constitutional amendment at the center of appellant's argument to have fully abrogated the rule requiring independent evidence of the alleged crime. We agree with that conclusion. In the preliminary examination stage of criminal proceedings, the application of the classical corpus delicti rule in California remains unabated.

BACKGROUND

Beginning in May 2007, Santa Rosa Police Department detectives conducted an elaborate investigation of respondent Frank Evan Powers-Monachello (Powers), whom they suspected of dealing large **904 amounts of cocaine in Sonoma County. Surveillance of Powers extended over several months and more than one county: at times, tracking devices were attached to his car, he was observed interacting with the other defendants on several occasion, and he was seen frequently at the home of two codefendants where a safe was ultimately found to contain a large amount of cocaine. Powers had the key to the safe and regularly provided cocaine to the other defendants.

Respondent and three codefendants ¹ were charged by a complaint with four felony counts: (1) conspiracy to possess cocaine for sale ( Pen.Code, § 182, subd. (a)(1)) ²; (2) possession of cocaine for sale ( Health & Saf.Code, § 11351); (3) cultivation of marijuana ( Health & Saf.Code, § 11358); and (4) possession of marijuana for sale. ( Health & Saf.Code, § 11359.)

The information alleged 10 facts to support the conspiracy charge:

"1. [Powers] drives out of county on several occasions.

"2. Upon his return to the county, Powers immediately goes to 1109 Copeland Creek Drive, Rohnert Park.

"3. 1109 Copeland Creek Drive is owned/occupied by [Scheiner] and [Gearardo].

*405 "4. Powers stores a safe at 1109 Copeland Creek Drive, in exchange he provided approximately 3.5 grams of cocaine per day to Scheiner and Gearardo.

"5. Powers possessed the key to the above described safe.

"6. Powers arrives almost daily to access or store cocaine in the safe at 1109 Copeland Creek Drive.

"7. [Floyd] arrived at 1109 Copeland Creek Drive, when Scheiner and Powers were present.

"8. Powers provides cocaine to Floyd.

"9. Powers gave Floyd two small boxes.

"10. Floyd loaded the boxes into his car and drove away."

At the two-day preliminary hearing in August 2008, Sonoma County Superior Court Judge Elliot Daum found probable cause for the possession charges, but dismissed the conspiracy charge for failure to satisfy the corpus delicti rule.

The prosecutor promptly filed a new, but essentially identical, four-count information alleging the same conspiracy charge that Judge Daum had dismissed. Respondent again moved under section 995 to dismiss the conspiracy charge on the ground that the prosecution had not produced evidence to satisfy the corpus delicti rule. After reviewing the entire transcript of the prior preliminary hearing and further briefing and argument, Judge Kenneth Gnoss granted respondent's motion and dismissed the conspiracy charge as to all four defendants as follows: "[T]here [was] insufficient, independent evidence presented at the preliminary hearing to establish an agreement or a conspiracy ... the [defendants'] statements should not be introduced."

**905 The Sonoma County District Attorney ³ filed this timely appeal.

DISCUSSION

The corpus delicti rule provides that " '[i]n every criminal trial, the prosecution must prove the corpus delicti, or the body of the crime itself—i.e., the fact of the injury, loss, or harm, and the existence of a criminal *406 agency as its cause. In California, it has traditionally been held, the prosecution cannot satisfy this burden by relying exclusively upon the extrajudicial statements, confessions, or admissions of the defendants. [Citations.]' [Citation.] This includes 'preoffense statements of later intent as well as ... postoffense admissions and confessions.' " ( People v. Miranda (2008) 161 Cal.App.4th 98, 107, 73 Cal.Rptr.3d 759.)

" ' "The corpus delicti rule was established by the courts to 'protect a defendant from the possibility of fabricated testimony out of which might be wrongfully established both the crime and its perpetrator.' ... The corpus delicti rule arose from a judicial concern that false confessions would lead to unjust convictions.... Today's judicial retention of the rule reflects the continued fear that confessions may be the result of either improper police activity or the mental instability of the accused, and the recognition that juries are likely to accept confessions uncritically...." ' " ( Creutz v. Superior Court (1996) 49 Cal.App.4th 822, 830, 56 Cal.Rptr.2d 870, quoting People v. Moreno (1987) 188 Cal.App.3d 1179, 1187, 233 Cal.Rptr. 863.) In the preliminary hearing context, it has long been held that "[a] defendant cannot be held to answer unless the corpus delicti of the offenses with which he is charged is established independently of his extrajudicial statements." ( People v. Martinez (1972) 27 Cal.App.3d 131, 133, 103 Cal.Rptr. 451.)

In 1982, the voters approved the "Right to Truth-in-Evidence" amendment to the California Constitution,⁴ which provides that "relevant evidence shall not be excluded in any criminal proceeding." ( Cal. Const., art. I, § 28, subd. (d).) Based on this amendment, appellant urges us to conclude that the corpus delicti requirement has been eliminated at the preliminary hearing stage of criminal proceedings. Appellant argues the trial court's dismissal of the conspiracy count was error because it was "based on a former corpus delicti rule, and resulted in the erroneous non-consideration of evidence relevant to the conspiracy charge."

Appellant complains that the trial court accepted the defense argument that the only possible evidence of agreement between the parties would be the statements of the codefendants and that "all arguments at the hearing echoed this theme." The district attorney countered this argument in the trial court, and argues here, by contending that as a result of the "Right to Truth-in-Evidence" amendment to the California Constitution, the codefendants' extrajudicial admissions must be considered to determine whether the corpus delicti rule is satisfied.

*407 Accordingly, the centerpiece of appellant's argument is that the codefendants' extrajudicial statements should have been admitted into evidence at the preliminary hearing, and that those statements could have helped to provide sufficient "independent" evidence of the corpus delicti **906 to support of the conspiracy charge. We agree that the trial court erred at the preliminary hearing by refusing to admit certain extrajudicial statements by the defendants which were relevant to the charges. However, we disagree that the admission of the the statements would have made any difference. Although extrajudicial statements may be considered in determining whether the defendants may be held to answer; the consideration of such statements is proper only after the corpus delicti rule is first satisfied.

Appellant's mistake in arguing otherwise is based on his failure to appreciate the difference between the operation of the corpus delicti rule at the preliminary examination of the charges, and at trial, which was the situation in People v. Alvarez (2002) 27 Cal.4th 1161, 119 Cal.Rptr.2d 903, 46 P.3d 372 ( Alvarez ), upon which both parties rely. The dissent compounds this mistake by suggesting that Alvarez lessened the strictures of the corpus delicti rule at the preliminary hearing stage as follows: "the required 'independent evidence' does not have to stand alone, i.e., it may be considered in conjunction with the extrajudicial statements." In fact, Alvarez affirmed the traditional requirement for independent evidence to establish the corpus delicti; and whether the extrajudicial admissions of the defendants could be used at trial for some other purpose is not at issue here.

In Alvarez, the Supreme Court addressed the impact on the corpus delicti rule of the "Right to Truth-in-Evidence" amendment to the California Constitution, which provides that "relevant evidence shall not be excluded in any criminal proceeding." (Cal. Const., art. I, § 28, subd. (d).) Unlike the present case, Alvarez involved a trial. The Court of Appeal held that the trial court erred in failing to give a sua sponte instruction regarding "the need for independent proof of the corpus delicti" for committing...