People v. Superior Court (Mendella)

• Decision Date: 25 April 1983
• Docket Number: S.F. 24492
• Citation: 661 P.2d 1081,33 Cal.3d 754,191 Cal.Rptr. 1
• Court: California Supreme Court
• Parties: , 661 P.2d 1081 The PEOPLE, Petitioner, v. The SUPERIOR COURT OF MARIN COUNTY, Respondent; David Frederick MENDELLA, Real Party in Interest.

Page 1

191 Cal.Rptr. 1

33 Cal.3d 754, 661 P.2d 1081

The PEOPLE, Petitioner, v. The SUPERIOR COURT OF MARIN COUNTY, Respondent David Frederick MENDELLA, Real Party in Interest.

S.F. 24492.

Supreme Court of California In Bank.

April 25, 1983.

As Modified June 1, 1983.

Rehearing Denied June 1, 1983.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., William D. Stein, Asst. Atty. Gen., W. Eric Collins and Robert R. Granucci, Deputy Attys. Gen., for petitioner.

No appearance for respondent.

Ruth L. Young, Public Defender, and Glenn D. Becker, Deputy Public Defender, for real party in interest.

MOSK, Justice.

The People seek a writ of mandate to compel respondent superior court to vacate its order granting defendant's motion to set aside a portion of an information. The primary question presented is whether an enhancement allegation may be challenged by a motion to dismiss under Penal Code section 995. ¹ We conclude that such a motion is a proper vehicle to test the sufficiency of evidence to support an enhancement allegation.

Defendant was charged by complaint with a violation of section 245, subdivision (a) (assault with a deadly weapon or by force likely to produce great bodily injury); no enhancement for great bodily injury (§ 12022.7) was charged at that time. The evidence presented at the preliminary hearing reveals the following factual background.

I

Brion Ward, the victim, went to defendant's home to retrieve some of Linda Bisco's belongings. Although Bisco was then Ward's paramour, she had previously been living with defendant. Ward, unaware that defendant was home, entered using Bisco's key. He was confronted by defendant who was carrying at his side a sword with a two-and-a-half-foot blade. Defendant demanded that Ward leave immediately; while backing out of the house, Ward attempted to reason with defendant. As Ward reached the doorstep, defendant thrust forward with the sword, penetrating Ward's chest and puncturing his lung. Ward's injuries required surgery and five days of hospitalization. At the time of the preliminary hearing, Ward continued to suffer occasional pain in his shoulder from the injury, but had otherwise recovered.

Defendant admitted having stabbed Ward but claimed that it was an accident and that he had not realized the sword was so sharp. He testified that "I had no idea a sword had that kind of momentum to go through a person that way. I thought if I touched him it would just push him back." Defendant stated that he intended to scare Ward off but not to injure him.

The magistrate held defendant to answer for the assault and denied a motion to reduce the charge to a misdemeanor (§ 17, subd. (b)(5)). The magistrate's factual findings indicate he was skeptical of defendant's testimony that he did not intend to cause the injury.

The information filed in superior court added to the original assault charge an allegation that defendant intentionally inflicted great bodily injury (§ 12022.7). Defendant moved to dismiss this allegation on two grounds: (1) there was insufficient evidence adduced at the preliminary hearing to support the enhancement and it should therefore be dismissed under section 995; ² or alternatively, (2) an "enhancement" not charged by the complaint may not be added after the preliminary hearing because, under section 739, the prosecution may charge only "offenses" in the information. ³ The court granted the motion on the latter ground.

II

In People v. Superior Court (Grilli) (1978) 84 Cal.App.3d 506, 148 Cal.Rptr. 740, the court held that a great bodily injury enhancement could "not be the subject of a motion to dismiss made pursuant to section 995 .... [I]t is clear from judicial analysis of analogous enhancement statutes (§§ 12022, 12022.5) that [§ 12022.7's] provisions do not define a crime or offense but relate to the penalty to be imposed under certain circumstances." (Id. at p. 512, 148 Cal.Rptr. 740.) Grilli relied heavily on language taken from opinions that discuss in general terms the standards for setting aside an information. "Numerous cases have held that an examination under section 995 ... is limited to determining 'if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it.' (Caughlin v. Superior Court (1971) 4 Cal.3d 461, 464, 93 Cal.Rptr. 587, 482 P.2d 211, italics added; People v. Hall [1971] 3 Cal.3d [992,] 996, 92 Cal.Rptr. 304, 479 P.2d 664; Rideout v. Superior Court (1967) 67 Cal.2d 471, 474, 62 Cal.Rptr. 581, 432 P.2d 197.)" (Id. 84 Cal.App.3d at p. 513, 148 Cal.Rptr. 740.) Thus Grilli concluded that an enhancement, not being an "offense," is not subject to section 995 review.

As we recently noted in Ramos v. Superior Court (1982) 32 Cal.3d 26, 32, footnote 8, 184 Cal.Rptr. 622, 642 P.2d 589, the Grilli reasoning has "been subjected to considerable criticism." In Ramos, we declined to express a view on the validity of the Grilli holding; it is now necessary to consider the issue directly. We conclude that the reasoning of Grilli does not withstand careful analysis; the opinion must therefore be disapproved.

Section 995 provides that the information must be set aside if the defendant has been "committed without reasonable or probable cause." Nowhere in the statute is a distinction drawn between "offense" and "enhancement"; in fact, the term "offense" is not mentioned. As noted by other courts, the language cited by Grilli to support its "offense" analysis consists only of "general textual statements made in three Supreme Court decisions involving drug charges with no enhancements. In each, the court was merely stating that an information would not be set aside if there was some rational ground for assuming the possibility that an 'offense' was committed. [Citations.] None gave any suggestion of how the Supreme Court would rule on a motion to dismiss an allegation of acts not strictly considered an 'offense.' " (Ervin v. Superior Court (1981) 119 Cal.App.3d 78, 84-85, 173 Cal.Rptr. 208.)

Over seven decades ago Justice Holmes aptly warned, "It is one of the misfortunes of the law that ideas become encysted in phrases and thereafter for a long time cease to provoke further analysis." (Hyde v. United States (1912) 225 U.S. 347, 391, 32 S.Ct. 793, 811, 56 L.Ed. 1114 [dis. opn. of Holmes, J.].) The mere fact that the word "offense" has often appeared in opinions discussing the application of section 995 lends no persuasive support to the Grilli rationale for limiting the reach of such motions to exclude enhancements.

It bears emphasis that "the preliminary examination is not merely a pretrial hearing." (Jones v. Superior Court (1971) 4 Cal.3d 660, 668, 94 Cal.Rptr. 289, 483 P.2d 1241.) "Rather, it is a proceeding designed to weed out groundless or unsupported charges of grave offenses and to relieve the accused of the degradation and expense of a criminal trial." (People v. Brice (1982) 130 Cal.App.3d 201, 209, 181 Cal.Rptr. 518; accord, Jennings v. Superior Court (1967) 66 Cal.2d 867, 880, 59 Cal.Rptr. 440, 428 P.2d 304; Jaffe v. Stone (1941) 18 Cal.2d 146, 150, 114 P.2d 335.) To fulfill this function, the defendant is permitted at the preliminary hearing, if he chooses, to dispute the charges, confront witnesses, challenge the prosecution's evidence, and present evidence in his defense. (Hawkins v. Superior Court (1978) 22 Cal.3d 584, 587, 592-593, 150 Cal.Rptr. 435, 586 P.2d 916; Jones v. Superior Court, supra, 4 Cal.3d 660, 668, 94 Cal.Rptr. 289, 483 P.2d 1241.) These procedural guarantees serve to implement the defendant's due process right to a pretrial determination of probable cause.

To allow the prosecution to indiscriminately charge enhancements without subjecting such allegations to judicial scrutiny under a section 995 motion is to undermine the procedural rights guaranteed to the defendant by the preliminary hearing process. "The obvious purpose of section 995 is to eliminate unnecessary trials and to prevent accusatory bodies such as grand juries from encroaching on the right of a person to be free from prosecution for crime unless there is some rational basis for entertaining the possibility of guilt." (People v. Sigal (1967) 249 Cal.App.2d 299, 305, 57 Cal.Rptr. 541; accord, Greenberg v. Superior Court (1942) 19 Cal.2d 319, 121 P.2d 713.) Thus, together the preliminary hearing and the section 995 motion operate as a judicial check on the exercise of prosecutorial discretion.

The preliminary hearing and the section 995 motion are not, however, limited to this function of screening out groundless prosecutions. "It is of at least equal, and often far greater, importance that the defendant not be charged excessively ... [p] To deny that the defendant is prejudiced by such exercises of prosecutorial discretion is to overlook the serious increase in a defendant's burden of standing trial on the greater charge, the tactical advantage conferred upon the prosecutor in respect to plea bargaining ... and the various collateral effects of the more serious accusation itself. An adequate screening procedure must be concerned with these problems of the overcharge as well as of the wholly unfounded charge." (Graham & Letwin, The Preliminary Hearing in Los Angeles: Some Field Findings and Legal Policy Observations (1971) 18 UCLA L.Rev. 635, 742-743; People v. Bird (1931) 212 Cal. 632, 640-644, 300 P. 23.) ⁴

These concerns are equally applicable to overcharging in the form of adding enhancements. A finding that even a single enhancement is true can have a significant impact on the number of years to which a defendant may ultimately be sentenced. (E.g., § 12022--additional one year; § 12022.3--additional two or three years; § 12022.5--additional two years; § 12022.6--additional one or two years; § 12022.7--additional three years; § 12022.8--additional five years.) Thus, as recognized by the Ervin court, "these allegations...