Thompson v. Superior Court

• Decision Date: 31 July 2001
• Docket Number: No. B144625.,B144625.
• Citation: Thompson v. Superior Court, 110 Cal.Rptr.2d 89, 91 Cal.App.4th 144 (Cal. App. 2001)
• Parties: Jermaine Marquice THOMPSON, Petitioner, v. SUPERIOR COURT of Los Angeles County, Respondent, The People of the State of California, Real Party in Interest.
• Court: California Court of Appeals

110 Cal.Rptr.2d 89

91 Cal.App.4th 144

Jermaine Marquice THOMPSON, Petitioner, v. SUPERIOR COURT of Los Angeles County, Respondent The People of the State of California, Real Party in Interest.

No. B144625.

Court of Appeal, Second District, Division 3.

July 31, 2001.

Michael P. Judge, Public Defender, Albert J. Menaster, Leslie Ringold and Alex Ricciardulli Deputy Public Defenders; Bruce Hoffman, Alternate Public Defender,

and Michael Goodman, Deputy Alternate Public Defender, Los Angeles, for Petitioner.

No appearance, for Respondent.

Gil Garcetti and Steve Cooley, District Attorneys, Brent Riggs, Linda Puentes and Shirley S. N. Sun, Los Angeles, Deputy District Attorneys, for Real Party in Interest.

ALDRICH, J.

In this case, we must decide whether the People are required to present evidence supporting "Three Strikes" prior conviction allegations at preliminary hearings. Petitioner Jermaine Marquice Thompson was charged with possession of cocaine. The complaint also alleged he had suffered two prior convictions within the meaning of the Three Strikes law. While acknowledging that California courts have held proof of strike priors is not required at preliminary hearings, Thompson argues that in light of the United States Supreme Court's decision in Apprendi v. New Jersey (2000) 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (Apprendi), the prior conviction allegations were elements of the charged offense, and therefore were required to be proven at the preliminary hearing. Thompson additionally urges that requiring proof of strike priors at preliminary hearings would further public policy objectives. Finally, he contends that, because prior conviction allegations that serve to elevate a charged offense from a misdemeanor to a felony are proved at preliminary hearings, failure to require similar proof of strike priors violates equal protection principles. Thompson seeks a writ of prohibition restraining his trial on the prior conviction allegations and directing the superior court to set aside the Three Strikes prior conviction allegations in the information pursuant to Penal Code section 995.¹

We conclude that California law does not require proof of Three Strikes priors at preliminary hearings, and Apprendi did not alter this principle. Contrary to Thompson's argument, we conclude that requiring such proof at preliminary hearings would be impractical and unworkable. We likewise reject Thompson's equal protection claim because he is not similarly situated to defendants charged with offenses in which a specified prior conviction is an element of the charged offense, or elevates the charged offense to a felony. Accordingly, we deny Thompson's petition for a writ of prohibition.

FACTUAL AND PROCEDURAL BACKGROUND

Thompson was charged in a felony complaint with possession of a controlled substance, cocaine (Health & Saf.Code, § 11350, subd. (a)). The complaint also alleged: (1) Thompson had twice been convicted of robbery (§ 211), a serious or violent felony within the meaning of the Three Strikes law (§§ 1170.12, subds.(a)(d), 667, subds. (b)(i)); and (2) Thompson had served three prior prison terms within the meaning of section 667.5, subdivision (b).

The People submitted no proof regarding the prior conviction and prison term allegations at the preliminary hearing. At the close of the preliminary hearing, Thompson unsuccessfully moved to dismiss all charges and enhancement allegations for insufficiency of the evidence.² Thompson was held to answer. On August 1, 2000, an information containing the same charges was filed in superior court. Thompson was arraigned, pleaded not guilty, and denied the prior conviction allegations.

Thompson then moved in superior court, pursuant to section 995, to set aside the portion of the information alleging the Three Strikes prior conviction allegations. He contended the United States Supreme Court's recent decision in Apprendi required that the prior convictions must be proven at the preliminary hearing. The superior court denied the motion. The instant petition followed.

DISCUSSION

1. The superior court properly denied Thompson's section 995 motion to set aside the Three Strikes prior conviction allegations.

a. Strike priors need not be proven at a preliminary hearing.

Because the issues presented are pure questions of law, we review the trial court's order de novo. (People v. Rells (2000) 22 Cal.4th 860, 870, 94 Cal.Rptr.2d 875, 996 P.2d 1184.)

California and federal courts have consistently recognized that proof of prior conviction allegations need not be presented at preliminary hearings. By statute, a defendant is entitled to a preliminary hearing to determine whether there exists probable cause to believe he or she has committed a felony. (§§ 859b, 866; People v. Eid (1994) 31 Cal.App.4th 114, 129, 36 Cal.Rptr.2d 835.) Section 871 provides that a criminal complaint shall be dismissed if it appears, after the preliminary hearing, that the defendant committed no public offense.³ To establish probable cause sufficient to withstand a section 871 or section 995 motion to dismiss, the People must make some showing as to the existence of each element of the charged offense. (Williams v. Superior Court (1969) 71 Cal.2d 1144, 1148-1149, 80 Cal. Rptr. 747, 458 P.2d 987; Salazar v. Superior Court (2000) 83 Cal.App.4th 840, 842, 100 Cal.Rptr.2d 120.) In some instances a prior conviction is an element of the charged offense, and consequently must be proven at the preliminary hearing.⁴ (E.g., People v. Baird (1995) 12 Cal.4th 126, 129, 48 Cal.Rptr.2d 65, 906 P.2d 1220 [ex-felon status of defendant in prosecution for violation of section 12021 (possession of a firearm by an ex-felon) "is an element of the offense"].)

Likewise, the People must present evidence at the preliminary hearing sufficient to establish probable cause on enhancement allegations that are directly or transactionally related to the charged offense. (People v. Superior Court (Mendella) (1983) 33 Cal.3d 754, 763, 191 Cal.Rptr. 1, 661 P.2d 1081 (Mendella) [superseded by statute on another point, as discussed in People v. Baries (1989) 209 Cal.App.3d 313, 321, 256 Cal.Rptr. 920]; People v Shaw (1986) 182 Cal.App.3d 682, 685, 227 Cal.Rptr. 378; Hwynh v. Superior Court (1996) 45 Cal.App.4th 891, 894-895, 54 Cal. Rptr.2d 336.) Mendella held that a defendant could challenge, in a motion pursuant to section 995, the People's failure to present sufficient evidence at the preliminary hearing to support a great bodily injury enhancement allegation. (Mendella, supra, at pp. 757, 763, 191 Cal.Rptr. 1, 661 P.2d 1081.) Implicit in Mendella's holding was the principle that the People must present evidence sufficient to establish probable cause on such enhancement allegations. People v. Shaw, supra, 182 Cal. App.3d 682, 227 Cal.Rptr. 378, construed Mendella to apply only to those enhancements directly or transactionally related to the charged offense. In Shaw, a defendant contended that allegations he had been convicted of four serious felonies within the meaning of section 667, subdivision (a) should have been dismissed because no evidence to support them had been adduced at the preliminary hearing. Shaw rejected this contention, reasoning that Mendella required proof at the preliminary hearing only of those enhancement allegations that were "in nature directly or transactionally related to the charged offense," such as great bodily injury, arming, aggravated theft, and special circumstances allegations. In contrast, prior conviction allegations had no relationship to the charged crime and were not subject to the same requirement. (Id. at pp. 685-686, 227 Cal.Rptr. 378; see also Salazar v. Superior Court, supra, 83 Cal. App.4th at pp. 845-846, 100 Cal.Rptr.2d 120 [holding that Mendella required proof of criminal street gang enhancement at preliminary hearing].)

Additionally, as both parties agree, as a matter of procedural necessity the People must adduce evidence at the preliminary hearing of prior conviction that serve to elevate a charged offense from a misdemeanor to a felony. (E.g., §§ 666, 667.51, 314, & 12025.) Although prior convictions alleged pursuant to such statutes are neither elements of the charged offenses (People v. Bouzas (1991) 53 Cal.3d 467, 479-480, 279 Cal.Rptr. 847, 807 P.2d 1076; People v. Hall (1998) 67 Cal.App.4th 128, 135, 79 Cal.Rptr.2d 690 and cases cited therein), nor directly or transactionally related to the charged offense, proof of the prior conviction is required so that the parties and the court may know whether to treat the charged offense as a misdemeanor or a felony.

Prior convictions alleged pursuant to the Three Strikes law, however, fall into none of these categories. Moreover, requiring proof of prior conviction allegations at preliminary hearings is inconsistent with the language and purposes of section 969a, which provides that the People may amend a pending indictment or information to allege prior felonies "whenever" such omission is discovered.⁵ Indeed, the People may amend an information to allege prior conviction allegations at any point until the jury that tried the case is discharged. (People v. Valladoli (1996) 13 Cal.4th 590, 594, 607-608, 54 Cal. Rptr.2d 695, 918 P.2d 999 [amendment of information to add prior conviction allegations to information after jury rendered verdict for charged crimes, but before jury was discharged, was proper and did not violate defendant's due process rights]; People v. Tindall (2000) 24 Cal.4th 767, 776, 782, 102 Cal.Rptr.2d 533, 14 P.3d 207 [information could not be amended to add prior conviction allegations after jury had been discharged].)

The import of section 969a "is that the defendant can be tried on a prior without evidence of same having been presented at the preliminary hearing or before the grand jury." (Ervin v. Superior Court (1981) 119 Cal.App.3d 78, 86-87, fn. 2, 173 Cal.Rptr. 208.) As Mendella explained, "[a...