People v. Williams

• Decision Date: 31 January 2003
• Docket Number: No. G028422.,No. G028417.,G028417.,G028422.
• Citation: 105 Cal.App.4th 1329,130 Cal.Rptr.2d 234
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Appellant, v. Willis WILLIAMS, Defendant and Respondent.

130 Cal.Rptr.2d 234

105 Cal.App.4th 1329

The PEOPLE, Plaintiff and Appellant, v. Willis WILLIAMS, Defendant and Respondent.

No. G028417.

No. G028422.

Court of Appeal, Fourth District, Division 3.

January 31, 2003.

As Modified on Denial of Rehearing February 27, 2003.

Review Granted May 14, 2003.

Tony Rackauckas, District Attorney, and Brian F. Fitzpatrick, Deputy District Attorney for Plaintiff and Appellant.

Diane L. Nichols, San Diego, under appointment by the Court of Appeal, for Defendant and Respondent.

OPINION

MOORE, J.

A magistrate reduced two "wobbler" felonies to misdemeanors at the conclusion of a preliminary hearing. (Pen.Code, § 17, subd. (b)(5); all further statutory references are to the Penal Code.) The district attorney appeals from the magistrate's order (G028422) and a subsequent order of the superior court denying a section 871.5 motion for reinstatement of the felony complaint (G028417). On our own motion, we consolidated the appeals.

The magistrate's reduction of a felony charge to a misdemeanor, pursuant to section 17, subdivision (b)(5), is not a dismissal under section 871. Section 871.5 specifically references several dismissal statutes, but does not list section 17, subdivision (b)(5) reductions as a basis for the motion. Therefore, such action is not properly the subject of a motion for reinstatement of a felony complaint and appeal No. G028417 is dismissed. Further, section 1238 does not provide for appellate review of the magistrate's order reducing a wobbler felony charge to a misdemeanor pursuant to section 17, subdivision (b)(5). Therefore, appeal No. G028422 is also dismissed.

I FACTS AND PROCEDURAL HISTORY

Defendant hit James Hundley in the head during a "pick-up" game of basketball. Hundley suffered a fractured skull, bleeding into the brain and coma, and required emergency surgery. When Hundley came out of the coma, he could not recall the details of the incident and may have suffered permanent brain damage.

The district attorney filed a felony complaint alleging one count of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)) and battery with serious bodily injury (§ 243, subd. (d)). Both offenses are "wobblers," which means they may be prosecuted as either felonies or misdemeanors. The complaint also alleged defendant inflicted serious bodily injury, and had a 1995 conviction for felony assault, a prior serious felony within the meaning of the "Three Strikes" law and section 667.5, subdivision (a), a 1995 conviction for felony false imprisonment, and had served a prior prison term, pursuant to section 667.5, subdivision (b).

At the preliminary hearing, Andrew Chades, a participant in the basketball game, testified to an argument between defendant and Hundley just before the incident. He stated, "They were arguing or discussing something about a call that happened earlier to [another] player." The conversation concluded with defendant asking Hundley, "`If I hacked you up and you woke up [in] a hospital bed, you woke up and yelled "foul," would it still be a foul?'" Hundley responded, `"that wouldn't happen,' and mentioned something about ... he'd get even or get revenge...." Chades noted that defendant "was kind of laughing it off. He didn't seem aggressive or anything like that.... He didn't even seem angry." As Hundley moved down the court with the ball, defendant, who was guarding Hundley, reached around Hundley's body for the ball. Hundley "bent over a little bit trying to ... keep the ball so the defendant couldn't hit it away." Hundley, who was described as the "much taller" player, swung an elbow. Defendant "leaned over and swung around [Hundley] with his left arm," hitting Hundley in the jaw.

Chades could not tell if defendant was attempting to get the ball or "punch" Hundley, but said defendant used a closed fist. Hundley fell "[l]ike a tree," "bounced off the floor[,] ... hit his head on the ground[,] and ... was out cold." Defendant looked at Hundley and "asked him if that was a foul and then kind of walked off, ran to his car." Defendant left the scene before emergency personnel arrived. Chades testified that he was "pretty shocked" by the incident because the games are usually played without violence and defendant did not seem angry. Less than 30 seconds elapsed between the verbal exchange and the hit. Chades said defendant could have been "going for the ball," but "it didn't look like it to [him]."

At the conclusion of the preliminary hearing, defense counsel moved for a dismissal of the charges. The magistrate heard the arguments of both counsel and said, "But if you intend to hack somebody as you go in, intentionally fouling him, trying to get the ball, trying to make a point, trying to back him off, and you cause substantial injury to him, you certainly have a civil liability; but have you committed a crime? What is the issue of intent? That's what I'm looking at the CALJIC for. [¶] And if one or the other of you knows, you can address the issue of whether in an assault you have to have intent to assault.... [¶] ... Sometimes people intentionally commit a foul for one reason or the other, but it doesn't rise to the level of a crime and that's what we're dealing with here."

The court then inquired if the charges were wobbler felonies. Defense counsel responded in the affirmative and asked the court to reduce the charges to misdemeanors. The district attorney objected, pointing to the victim's possible long-term injuries and evidence tending to show defendant intended to punch Hundley. The court responded, "The long-term effects don't define the nature of the crime. The crime is defined by the acts when they occur, not by what the collateral or subsequent effects are as a result of them. There is a rule in the law called the thin-skull plaintiff rule on the civil side that says you may cause tremendous damage to a person that no normal person would but a particular person may have a proclivity or certain weakness that nobody knew about that would cause him to do it. [¶ ] Now, I don't know whether the defendant was going for the ball or not or whether he was going to intentionally foul this guy, maybe even throw a punch. I do know having a daughter who plays in division one soccer that throwing elbows in soccer games is something that happens, intentional fouling, [¶] I do know that it happens in sports, that part of the game is rough play and intentionally taking a foul to try to establish territory and get a player to back off and not try to be aggressive and then score. I also know people get chippy and trash talk in pickup [sic] games in basketball and say things that can escalate that if they were in a bar would get them popped probably with having some alcohol around and might get them popped on the playing field. [¶] But I'm not ready to say that the information I've heard as to how this occurred rises to felony conduct as opposed to somebody who without justification and in totally improper behavior pops somebody. But if that's the way it happened in the course of a sporting event like that, I can't say because the victim suffered significant, substantial injury that that makes it a felony." The court conceded defendant inflicted "substantial" bodily injury, but stated, "I don't know whether it's from the punch or falling down. Clearly, the victim suffered substantial head trauma ... that is clearly substantial injury."

The district attorney asked, "And your honor is aware of his prior history of 245's, 236's[?]" The court responded, "I am aware. I see that. But what counts is what was the conduct he did in the course of this he threw a punch in a sporting event. That's the best the People can say. The best the defense can say is, he was really going for [the] ball. He may have had a closed fist but he was trying to punch it away. [¶] But [do I] think it's felony conduct? No. Do I think he seriously injured somebody? Yes ... Do I think that under the facts of this case that's the appropriate disposition? The answer is yes. [¶] ... [¶] And after considering it and looking at CALJIC and looking at the jury instructions on [section] 245 and the jury instructions on [section] 243 [subdivision] (d)'s and looking at what's involved, I don't believe the felony is the appropriate charge and I think it should be in this case reduced to a misdemeanor."

The reporter's transcript reflects the court stated it would "exercise [its] discretion under [] section 1385¹ and reduce the charges to a misdemeanor." However, the clerk's transcript notes that the court exercised its discretion under section 17, subdivision (b)(5).² The court set a date for a misdemeanor trial. Defendant withdrew his not guilty plea and pleaded guilty to the misdemeanor charges at a pretrial hearing.

In the interim, the district attorney filed a motion in superior court to reinstate the felony complaint pursuant to section 871.5, complaining the magistrate abused his discretion by failing to "consider" defendant's prior violent conduct and by failing to adequately articulate its thought process. The superior court denied the motion "on the ground that [ ] section 871.5 does not permit review of an order reducing a felony to a misdemeanor pursuant to [ ] section 17(b)(5)." The district attorney appeals from the magistrate's order reducing the wobbler felonies to misdemeanors and the superior court's order denying the subsequent 871.5 motion.

II DISCUSSION

Sections 871 & 871.5

The district attorney challenges the superior court's order denying its motion to reinstate felony charges. As noted, the superior court concluded it was without jurisdiction to review the order pursuant to section 871.5 because the felony charges had been reduced to misdemeanors and not dismissed. The district attorney claims the reduction, based on an insufficiency of the evidence, constitutes a dismissal under 871. We disagree.

Section 871 provides: "If, after...