People v. Soto

• Decision Date: 23 September 1977
• Docket Number: Cr. 15789
• Citation: 141 Cal.Rptr. 343,74 Cal.App.3d 267
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. Ruben SOTO and Rershell Denise West, Defendant and Respondent.

Page 343

141 Cal.Rptr. 343

74 Cal.App.3d 267

The PEOPLE of the State of California, Plaintiff and Appellant, v. Ruben SOTO and Rershell Denise West, Defendant and Respondent.

Cr. 15789.

Court of Appeal, First District, Division 1, California.

Sept. 23, 1977.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Clifford K. Thompson, Jr., Ann K. Jensen, Deputy Attys. Gen., San Francisco, for plaintiff and appellant.

James H. Newhouse, Berkeley, for respondent Soto.

Kenneth M. Bareilles, Eureka, for respondent West.

SIMS, Acting Presiding Justice.

The People have appealed ¹ from orders of the trial court that sustained the motions of the defendants Soto and West, under section 995 of the Penal Code, insofar as they sought dismissal of so much of the first count of the information, charging kidnapping for ransom in violation of section 209 of the Penal Code, as alleged that the victim suffered bodily harm, and that sustained the motion of the defendant Soto for dismissal of the second count charging him with assault to commit rape in violation of section 220 of the Penal Code.

The defendant West, through her attorney, has elected not to file a brief or appear at oral argument on this appeal. Since the argument on behalf of the People with respect to both issues stresses actions solely attributable to the defendant Soto, and fails to show how acts attributable jointly or severally to both defendants could alone warrant the charge of bodily harm, we affirm the order as to defendant West.

Following oral argument in this case, the Attorney General advised the court that the defendant Soto had been convicted by verdict of a jury of kidnapping for ransom in violation of section 209, augmented by use of a firearm as provided in Penal Code section 12022.5. It was suggested that the case was moot. Before the court could act on that suggestion, the Attorney General at the request of the district attorney requested that the appeal be pursued to a conclusion "because the defendant can appeal his conviction for a violation of Penal Code section 209, and in case that conviction is reversed we want to be able to try those matters in which the 995 motion was granted." It was also stated: "(I)t would be instructive to find out whether bodily injury must be proved at the preliminary examination. This is especially so in this case where our office was caught in the middle between two judges with different views in this issue."

We question, without so ruling, that the defendant Soto can be subjected to prosecution for a more serious offense as the price of taking a successful appeal. (See People v. Henderson (1963) 60 Cal.2d 482, 495-497, 35 Cal.Rptr. 77, 386 P.2d 677; and Witkin, Cal. Crimes (1975 Supp.) § 202A, pp. 151-153.) Nevertheless, in view of the procedural morass which beset the progress of this case we have undertaken to unravel it for the edification of those concerned. In so doing, although we find error, in the interests of justice we affirm the action of the lower court, thereby rendering it unnecessary to determine the question posed above.

I

A. Pleading

From the record ² it appears that the complaint filed before the magistrate did not contain any allegations to show that the People were seeking the enhanced punishment prescribed by section 209. ³ At the preliminary hearing when the prosecutor sought to question the victim about the existence of any remaining physical effects of the conduct, described below, which gave rise to the filing of the second count against Soto, the latter's attorney interposed an objection that the matter was irrelevant. The prosecutor suggested the facts were relevant under the penalty provisions of section 209. The magistrate sustained the objection and observed, "We are not concerned with the penalty provisions today in this preliminary hearing."

In the superior court the prosecutor defended his right to allege any matters which were supported by the evidence before the magistrate. (Pen. Code, § 739; People v. Eitzen (1974) 43 Cal.App.3d 253, 259-260, 117 Cal.Rptr. 772; Dudley v. Superior Court (1974) 36 Cal.App.3d 977, 982-985, 111 Cal.Rptr. 797; cf. Jones v. Superior Court (1971) 4 Cal.3d 660, 664-667, 94 Cal.Rptr. 289, 483 P.2d 1241; see Witkin, Cal. Criminal Procedure (1963) § 181, p. 171 and Supp. (1975) § 181, p. 151.) The court granted the motions to strike the bodily injury clause, and stated, "If it is surplusage, it is proper to strike it. (P) If you are saying that it belongs there on a factual basis I say the factual basis had not been established according to this record." The first ground was qualified by a prior statement to the prosecutor: "You are not being prejudiced one iota. If it is surplusage, you are going to prove it at the point of trial."

There is strong support for the view that it is unnecessary to allege facts which would delineate the punishment sought for a violation of section 209 of the Penal Code. In People v. Britton (1936) 6 Cal.2d 1, 56 P.2d 494, the court rejected the contention that it was necessary to allege that the victim of a kidnapping for robbery suffered bodily harm in order to sustain proof and sentencing in accordance with the punishment authorized for such circumstance. The court stated: "Section 209 of the Penal Code, as amended, for the purpose of this case, defines but one criminal act or offense, viz., kidnaping for purpose of robbery, for which any one of several punishments may be imposed, depending entirely upon the circumstances surrounding its commission. A charge in the language of the statute that the accused had kidnaped his victim for the purpose of robbery in violation of the statute apprises the accused of what he will be expected to meet and of the several punishments prescribed therefor, any one of which, upon conviction, may be imposed upon him." (6 Cal.2d at pp. 4-5, 56 P.2d at p. 496.) The court pointed out: "It is well settled in this state that an indictment or information need not allege the particular mode or means employed in the commission of an offense, except when of the essence thereof. (Citation.) In other words, particulars as to manner, means, place or circumstances need not in general be added to the statutory definition. (Citations.) The indictment or information need only charge the essential elements of the statutory offense. It then fairly apprises the defendant of what he is to meet at the trial." (Id., at p. 5, 56 P.2d at p. 496; see also People v. Reeves (1955) 135 Cal.App.2d 449, 453-454, 287 P.2d 544; People v. Holt (1949) 93 Cal.App.2d 473, 476, 209 P.2d 94 (cert. den. 339 U.S. 950, 70 S.Ct. 798, 94 L.Ed. 1363); and Witkin, Cal. Crimes (1963) § 355, p. 327; and Witkin, Cal. Criminal Procedure, op. cit. supra, § 199, subd. (e), p. 188; note, People v. Haley (1941) 46 Cal.App.2d 618, 624-625, 116 P.2d 498, and 20 Cal.Jur.3d, § 1921, p. 485, fns. 30 and 31.)

The principle that the allegation of facts constituting aggravating circumstances is unnecessary does not of necessity establish that such allegations, when pleaded, should be stricken. In this particular case we cannot determine whether the magistrate's ruling was predicated on the theory that the prosecutor had failed to allege that he was charging bodily harm, or on the belief that since proof of bodily harm could be made under a general allegation of violation of section 209 it was unnecessary to go into the matter at the preliminary examination. The prosecutor's failure to offer to amend precluded a determination of the former question. The tardy addition in the information did not cure the failure to attempt to do so before the magistrate. We, therefore, do not find the defendants estopped to question the sufficiency of the evidence before the magistrate on the issue of bodily harm because of their objection. The prime fault was the prosecution's failure to attempt to amend its complaint in the face of that objection.

If the magistrate intended to exclude the evidence concerning bodily harm as irrelevant regardless of the state of the pleadings, we feel he erred. Recent cases indicate that it is essential that the accused be given full notice of the charges against him and an opportunity at a preliminary hearing to determine whether there is evidence to support those charges. (See Jones v. Superior Court, supra, 4 Cal.3d 660, 667-668, 94 Cal.Rptr. 289, 483 P.2d 1241; and Jennings v. Superior Court (1967) 66 Cal.2d 867, 880, 59 Cal.Rptr. 440, 428 P.2d 304.)

In this case the defendants sought to limit the gravity of the charges at every opportunity, and they were entitled to a ruling on the merits in response to their motion in the superior court. The court erred in attempting to dispose of the allegations as surplusage. Under the circumstances of this case it was not erroneous for the prosecution to give the defendants notice that it was seeking to aggravate the punishment. (See In re Crumpton (1973) 9 Cal.3d 463, 468, 106 Cal.Rptr. 770, 507 P.2d 74.) Generally such matters are required to be charged. (See Pen. Code former § 3024 and People v. Ford (1964) 60 Cal.2d 772, 794, 36 Cal.Rptr. 620, 388 P.2d 892; former § 213 and People v. Superior Court (Lozano), supra, 69 Cal.App.3d 57, 62-65, 137 Cal.Rptr. 767; People v. Superior Court (Vasquez), supra, 69 Cal.App.3d 14, 19, 137 Cal.Rptr. 762; People v. Salas (1976) 58 Cal.App.3d 460, 475-476, 129 Cal.Rptr. 871, and People v. Hopkins (1974) 39 Cal.App.3d 107, 113-119, 113 Cal.Rptr. 880; former § 461 and People v. Superior Court (Lozano), supra; and former § 264 and People v. Superior Court (Vasquez), supra.) In the foregoing sections (all amended or repealed effective July 1, 1977, by the revision of the Penal Code contained in Stats. 1976, ch. 1139, see §§ 279, 138, 207 and 154), it was expressly provided that the aggravating circumstances be charged. Nonetheless, even without a statutory mandate, it has been...