THE PEOPLE v. KAI JOAQUIN LOZANO

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Court of Appeal, Second District, California.

THE PEOPLE, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; KAI JOAQUIN LOZANO, Real Party in Interest.

No. B216622

Decided: February 24, 2010

Steve Cooley, District Attorney, Roberta A. Schwartz, Patrick D. Moran and Phyllis Asayama, Deputy District Attorneys, for Petitioner. No appearance for Respondent. Henry Salcido, under appointment by the Court of Appeal, for Real Party in Interest.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

INTRODUCTION

Real party in interest Kai Joaquin Lozano was charged with murder.   After a preliminary hearing, the magistrate reduced his murder charge to manslaughter.   The People, however, refiled the murder charge.   Lozano filed a motion to dismiss the murder charge, which the trial court granted.   The court found that the magistrate made factual findings that preclude the murder charge.   The People then filed this petition for writ of mandate arguing that the court erred in dismissing the murder charge.   We find that the magistrate made, under Jones v. Superior Court (1971) 4 Cal.3d 660 (Jones ), factual findings fatal to the murder charge.   We therefore deny the petition for writ of mandate.

FACTUAL AND PROCEDURAL BACKGROUND

I.  Factual background.

On September 13, 2008, around 1:00 a.m., Lozano was at the Village Pub with his then girlfriend Melissa Smith, Sally Gonzalez,1 her girlfriend Yvette Smith, Sonia Gamez and Kathy Reyes.2  Melissa and Yvette are sisters.   At the bar, Sally had one beer;  Yvette and Melissa were tipsy.   Kathy and Sonia went to the bathroom.   Two blonde “White girls” were also in the bathroom.   One woman was using the toilet, but she hadn't closed the curtain, causing Kathy to remark, “ ‘[W]e don't need to see that.’  “ The woman told Kathy not to look “bitch.”

These two Caucasian women were with three men:  a Hispanic male with his hair in a ponytail wearing a white T-shirt, about 6 feet 2 inches and weighing about 200 pounds;  another Hispanic man, bald, about 5 feet 8 inches and about 300 pounds; 3  and the third man used crutches and wore a white shirt.   The Caucasian women argued with some other Hispanic women inside the bar.

When the bar closed, people went outside.   Sally walked outside with Yvette.   The Caucasian girls were physically fighting with two Hispanic girls.   The Hispanic girls left, and Kathy and the two Caucasian girls started to fight.   Sally and Yvette tried to get one of the women off of Kathy.   The bald guy had his shirt off and he shoved Sally, although she told him she wasn't trying to hurt anybody-she just wanted to leave.   He continued to push Sally, “throwing [her] down.”

The man with the ponytail, later identified as Francisco Esparza, confronted Yvette and asked why she hit his friend.   Yvette explained she wasn't hitting anyone, that she was trying to break up the fight, but the man aggressively “puff[ed]” out his chest and pushed her.   Lozano grabbed Yvette's arm and tried to pull her away.   Esparza hit Lozano, but Yvette wasn't sure who he intended to hit:  her or Lozano.

Lozano told everyone to get into his truck.4  Melissa sat in the front, Yvette sat in the middle back, and Sally and Kathy got into the passenger side back seat.   Lozano backed up the truck.   Sally heard Kathy say that somebody was coming towards the car.   They were trying to leave when Sally heard gunshots from inside the car.   Lozano, who was driving, had a dark object in his hands and then Sally saw sparks.   Esparza died, having been shot three times.

None of the witnesses saw Lozano argue with anyone or physically assault anyone at any time during the night.   None of the witnesses saw anyone, including Lozano and Esparza, with a gun or a weapon.

About one year before the current incident, Melissa was badly beaten at the Village Pub by Alejandra Gomez, who was charged with attempted murder.   Esperanza and Francesca Carmona were also involved in the incident.   The Carmona women are involved with the Rancho San Pedro gang.   Lozano, who was in Iraq at the time, knew that Melissa had been beaten.   As a result of the beating, she was in a coma for a week or two.

Since her beating, Melissa blacks out when people fight and she can't remember things.   During the events of September 13, 2008, Melissa blacked out.   She remembered crying and telling a Hispanic man not to be mean to her sister.   She also remembered a man who was mad coming up to the truck and hearing the man and Lozano argue;  the man was trying to get into the truck.   She believed her life was in danger, and she knows that Lozano was trying to protect her.   She didn't hear anyone call out, “ ‘Rancho,’ “ but the men looked like gang members.   At the time, Melissa didn't know that the men involved were gang members, but she knows it now because Lozano told her they were gang members.

Detective Isidro Rodriguez investigated the incident.   Kathy told him that after she got into Lozano's truck and they were getting ready to leave, a male Hispanic approached it.   The man's hands were inside or partially inside the truck, and he struggled with Lozano.   Kathy told the detective that the man was almost halfway in the car, reaching in through the window.   Lozano leaned to his right and then Kathy heard three gunshots, but she never saw a gun.

Detective Burzumato testified about a conversation he had with Edwin Barnes, the Village Pub's security guard the night Esparza was shot.   When the detective asked Barnes if he heard anybody say, “ ‘ “Rancho San Pedro” ‘ “ that night, Barnes said, “ ‘Yeah, I heard that.’  “ Barnes told the detective that Esparza was giving people a “ ‘bunch of shit in the club.’  “ Esparza also gave Barnes “ ‘shit’ “ at the door and said “ ‘to watch his shirt.’  “ Esparza wore a shirt over his T-shirt and “ ‘most of the time when guys do that, they're trying to hide their heat or whatever.’  “ Barnes saw Esparza give something to one of his friends and Barnes's “ ‘first thought was maybe he's passing his thing to him because he was ready to go outside, and he threw his shirt on the freezer.’  “ 5 One patron, Anthony, was afraid to go outside because fighting was going on.   He said, “ ‘They're going to fucking shoot me.   I don't have my heat on me.’  “ Barnes witnessed an incident between Anthony and the guy with the ponytail, Esparza.   Anthony bumped into him, and Esparza started “ ‘talking shit,’ “ saying, “ ‘You don't want none of us tonight.   You don't want to fuck with us tonight.’  “ 6 The man with the ponytail “ ‘went to his waist[.]’ “

Barnes also witnessed the fight in the parking lot.   Esparza was “ ‘in the mix[,] ․ kicking and pulling hair.’  “ The “fat guy” said “ ‘ “[s]tab her [,][s]tab her,” ‘ “ “ ‘ “somebody get the heat.”  ‘ “ Barnes saw Lozano's truck come to a screeching stop, and “ ‘the big, fat--and the big guy with the ponytail, he starts walking up to the truck, and you could hear words going back and forth.’  “ Barnes identified Esparza as the “ ‘fat’ “ guy.

Over the People's objection, Officer Adriana Bravo testified as a gang expert for the defense.   While waiting to testify, Officer Bravo noticed that Angelica Cena, Armina Carmona and Irvin Beltran, documented Rancho San Pedro gang members, were in court.   Armina Carmona had a child with the decedent, Esparza.   Armina's sister, Esperanza Carmona, was involved in the beating of Melissa Smith.

Rancho San Pedro's “M.O.” is “beating down” people.   The gang's common activities include murder, kidnapping, carjacking, robberies, burglaries, assaults with deadly weapons, criminal threats, vandalism and rape.   Two gang members are being prosecuted for kicking an elderly man to death, and Francesca Carmona has a case pending alleging she kicked a neighbor's head.   The Village Pub is a known hangout for Rancho San Pedro gang members.   It is common for women to be associates of the gang, and gang members enjoy watching the female associates fight and encourage them in it.

Officer Bravo had personally encountered Esparza, who self-admitted his membership in the Rancho San Pedro gang to her.   He belonged to the Projects clique and had “ ‘The Projects' “ and “ ‘Spanko’ “ tattoos.7  Esparza was a hard-core member of the gang, meaning he had pull and carried weight in it.   At the time of his death, Esparza was on parole for possession of a handgun.   Esparza's tombstone reads, “ ‘R.I.P.’ “ “ ‘Poncho.’  “ In the middle of a circle is “ '16,' “ which is the clique he belonged to.   Jose Rodriguez, the man on crutches, was also a Rancho San Pedro gang member on parole for murder.   Ruben Rojas, who was also at the Village Pub that night, is a Rancho San Pedro gang member and he has a lengthy criminal rap sheet.

Officer Bravo did not find it credible that nobody yelled out “ ‘Rancho,’ “ during the fight.  “This gang is known to yell out their gang, ‘Rancho,’ especially when there's any type of fights, beatings, which normally happen in most of these bars in San Pedro which Rancho San Pedro are always there.”   In a hypothetical fight during the course of which one person yells, “ ‘[s]tab her [,][s]tab her,’ “ that is encouragement for the benefit of the gang.   In her opinion, Esparza's actions were done for the benefit of the gang.

Based on her gang expertise and general training and experience, most gang members wear baggie shirts or pants to hide weapons.  “And it's not very common for a gang member to wear two shirts unless he is concealing something.”   Referring to what Anthony said about Esparza grabbing his waist, the officer said, “Anyone holding on to their waistband is--either they're concealing any type of contraband or weapons, especially when they're confronted with someone else․  [W]ell, my training and experience with gang members, this is what they usually do to intimidate that other person, letting them know that they have some type of weapon on them.”   If Esparza had a weapon on him, one of his gang associates would have removed it before he was taken to the hospital.

According to the autopsy report, Esparza had a .28 blood alcohol level and cocaine in his system.

II. Procedural background.

On September 17, 2008, the People filed a felony complaint charging Lozano with one count of murder (Pen.Code, § 187, subd. (a)).8  The preliminary hearing was held in February 2009.   After hearing the testimony described above, the magistrate found that the People “failed to prove the [section] 187(a) probable cause of felony malice․  [T]here is sufficient--although I think the jury very well can find self-defense, there is sufficient cause to hold the defendant to answer to Penal Code section 192(a), and I'm going to do so.”

On April 14, 2009, the People filed an amended information charging Lozano with murder and use of a firearm (§ 12022.53, subd. (d)).  Lozano filed a motion to set aside the information (§ 995) in which he argued, among other things, that the magistrate made factual findings fatal to the murder charge.   The People opposed the motion and argued that the magistrate relied on inadmissible evidence (e.g., Officer Bravo's testimony and Detective Burzumato's testimony about what Edwin Barnes said and what Anthony said) and that the magistrate did not make any factual findings that precluded the murder charge from going forward.

Upon receiving the motion, the trial court, Judge Tomson Ong, referred the matter back to the magistrate “to give me his reason why this is a manslaughter case versus a murder pursuant to ․ Jones.”   The People objected to the referral and requested reconsideration, but Judge Ong denied it, finding that there “were ambiguities to the factual findings to support the lack of malice” and he wanted the magistrate to clarify the ambiguities.

The People again protested the referral by filing a motion asking the magistrate to decline the referral.   Despite the motion, the case was back before the magistrate, Judge Otto, on April 13, 2009, who cited his “inherent” authority to hear the matter.   We quote at length from the magistrate's statement at the second hearing:

“To clarify, this court found:  [¶] 1. That the People failed to present sufficient evidence from which a reasonable person could find that defendant, Mr. Lozano, acted with either express or implied malice when he shot the alleged victim ․ as he was approaching, reaching into defendant's driver's side window as the defendant was trying to get away with Melissa Smith, Kathy Reyes, and Yvette Smith.

“Further, the defendant presented evidence that a reasonable person could only find that Mr. Esparza, who was undisputedly a large man, weighing in excess of 230 pounds, at least 6-feet tall--that is undisputed evidence according to the coroner's report--was a member of a violent criminal street gang, that is, the Rancho San Pedro Street Gang, and was an imminent threat of causing bodily injury or death to defendant or his companions.

“While this evidence in and of itself created only an imperfect self-defense because it left for a jury or trier of fact to determine whether the defendant reasonably believed that the immediate use of deadly force was necessary to defend against the danger, and whether the defendant used no more force than was reasonably necessary to defend against the danger, thus, at most, the court concluded and held the defendant can be found guilty only of involuntary manslaughter and not of murder as charged.

“The court reduced the case to one of voluntary manslaughter and found the following evidence to be in support of that and to be credible:

“That Mr. Esparza had reached into the defendant's truck and/or placed the upper portion of his body into the truck;

“That Mr. Esparza was a very large man, as I said, weighing in excess of 230 pounds and 6-feet tall, and Mr. Esparza was a known member of a violent street gang, Rancho San Pedro;

“That the defendant--that the defendant knew that his friend and companion Melissa Smith, who was next to him in the truck at the time of the incident, had been almost killed approximately one year earlier when, at the same location, known Rancho San Pedro female gang associates beat her down;

“That there was uncontroverted evidence that demonstrated prior physical assaults by Mr. Esparza, including a prior physical assault on Mr. Lozano that night where he, Mr. Lozano, was hit, it appeared, as a result of one of the girls getting out of the way;  and that two of the four girls were actually pushed or touched and assaulted by Mr. Esparza;

“That Mr. Lozano, the defendant, was aware that Mr. Esparza's prior assaults on both the two girls--Sally and Yvette as I recall correctly--had happened just within a matter of minutes before;

“That Mr. Lozano's acting--Mr.   Lozano's actions in rounding up the four girls and taking them should have been--taking them to safety in his truck is clearly indicative of a clear intent to leave the violence that was occurring in the parking lot of the Village Pub and negates any possible finding of express or implied malice on his part.

“I would also note that as to the witnesses, I found the testimony of [the] defense gang expert Adrian Bravo as to the defendant--as to the status of the defendant [sic ], among other things, to be particularly credible.

“The testimony of Sonia Gamez that defendant [sic ]--Mr.   Esparza had body-slammed Sally--I believe that's Sally Reyes, who was his aunt--against the car and, quote, manhandled her was particularly credible.

“I also find that the testimony was credible that he pushed or hit Yvette Smith.

“I also found credible the testimony by the gang expert, in particular, that this action in the earlier testimony that Yvette Smith asked him to stop with respect to Sally, and that when that happened, the--Mr.   Esparza would have felt, in gang culture, to have been disrespected.

“I also found credible the evidence that Mr. Esparza, the alleged victim, may have earlier had a weapon or may have had a weapon at the time.   The reasonable inference is he may have given it after he was shot or immediately before he was shot to another companion who was also identified as a Rancho San Pedro gang member, Jose Rodriguez.

“I find that the reputations of the victims were appropriate evidence, and I cite People vs.   Minifie ․

“I find the question of whether there was self-defense to raise an issue for the jury as to whether the force was reasonable in these circumstances;  and, therefore, I'm not granting the--to the extent it's before me, the request to reconsider my ruling on holding him to answer on manslaughter.”

The matter was then back before Judge Otto on May 1, 2009.   He granted the section 995 motion stating that “[t]he fact that he reached inside the car, given the earlier history of the events supports Judge Otto's findings that there is good faith but unreasonable use of force in this case that satisfies a voluntary manslaughter but not a murder case.”

DISCUSSION

I. The motion to dismiss.

The district attorney makes two main arguments.   First, the trial court had no authority to send the matter back to the magistrate.   Second, even if it did, the magistrate made legal, as opposed to factual, findings that did not preclude filing the murder charge.   We disagree with both arguments

A.  Did the trial court have the authority to refer the matter back to the magistrate to clarify his ruling?

The district attorney's first argument is the trial court lacked any authority to remand the matter to the magistrate, who, in turn, lacked jurisdiction to reopen the preliminary examination.   The district attorney relies on section 995a, subdivision (b)(1), which provides that a matter may be remanded to the magistrate under limited circumstances:  “Without setting aside the information, the court may, upon motion of the prosecuting attorney, order further proceedings to correct errors alleged by the defendant if the court finds that such errors are minor errors of omission, ambiguity, or technical defect which can be expeditiously cured or corrected without a rehearing of a substantial portion of the evidence.   The court may remand the cause to the committing magistrate for further proceedings, or if the parties and the court agree, the court may itself sit as a magistrate and conduct further proceedings.   When remanding the cause to the committing magistrate, the court shall state in its remand order which minor errors it finds could be expeditiously cured or corrected.”  (See also Caple v. Superior Court (1987) 195 Cal.App.3d 594, 601-602 [before a trial court may institute further proceedings to correct preliminary hearing errors, section 995a requires the court to find that there has been a minor error of omission, ambiguity or technical defect which can be expeditiously cured].) 9

The district attorney then cites People v. Silva (1995) 36 Cal.App.4th 231.   In Silva, the magistrate also sat as the trial judge.   After a preliminary hearing, the defendant was “ ‘bound over,’ “ even though defense counsel said he wanted to make a motion to reduce the offense.  (Id. at p. 233.)   After the information was filed, the magistrate, now sitting as the trial court, reduced the offense to a misdemeanor, thinking that the issue had been properly reserved.  Silva found that the magistrate had no power to reduce the offense under section 17, subdivision (b)(5), having lost jurisdiction of the matter.10  The court said:  “ ‘At the conclusion of the examination, the law requires that if it appears to the magistrate that a public offense has been committed and there is sufficient cause to believe the defendant guilty thereof, he must make or indorse on the complaint an order signed by him to that effect.   In making this order, the magistrate has exhausted all the power in the premises with which he has been invested by law.   Any attempt on his part thereafter to modify this order, either under the direction of the superior court or upon his own motion, except to correct the same in matter of form, is beyond his power and jurisdiction.’  “ (Silva, at pp. 234 -235.)

The next case the district attorney cites is Loverde v. Superior Court (1984) 162 Cal.App.3d 102.   At the preliminary hearing in Loverde there was a factual dispute about the knock-notice given by law enforcement agents.   The magistrate expressed concern over the manner of entry, but found that contraband in the house was admissible under the doctrine of inevitable discovery.   At the subsequent section 995 hearing before the trial court, the district attorney argued that the magistrate reached the right result, albeit for the wrong reason, but that a remand could clarify any ambiguity.   The trial court wanted to know if the magistrate believed the agent's version of events and it therefore remanded so that the magistrate could “ ‘make a determination on credibility since the finding was never made.’  “ (Loverde, at p. 105, italics added.)  Loverde held that the remand did not meet the criteria in section 995a, subdivision (b)(1).   Although the magistrate sidestepped making any credibility determinations and instead relied on an incorrect theory of law, there was no omission or ambiguity in the magistrate's proceedings, just legal error.   The trial court's remand therefore was an improper invitation for the magistrate to relitigate the motion to suppress and to make credibility determinations it had previously declined to make.   Remand was therefore unwarranted.

We see nothing in either section 995a, subdivision (b)(1), or Silva and Loverde that renders the procedure the trial court and magistrate employed here error.  Silva is based on a magistrate, after having lost his authority, attempting to reduce an offense to a misdemeanor in violation of a specific statute.   The magistrate here, however, when the matter was back before him, did not reduce or otherwise amend his prior order.   He clarified it-as the trial court requested.   In contrast to Loverde where the trial court sent the matter back to have the magistrate address an issue anew, the trial court here did not ask the magistrate to readdress the reduction in charge.   It asked the magistrate to clarify what the trial court found to be an ambiguous order.   Indeed, the magistrate agreed it was ambiguous, having been issued after a lengthy two-day preliminary hearing.   Thus, the magistrate did not change its order reducing the murder charge to manslaughter, it merely explained the reasons for its order.   Nothing the district attorney has cited to us precludes the trial court from requesting clarification from the magistrate in such circumstances.

B. Did the magistrate make a factual finding or a legal conclusion?

A magistrate's function at a felony preliminary hearing is to determine whether there is “sufficient cause” to believe defendant is guilty of the charged offense. (§§ 871, 872.)  “ ‘[S]ufficient cause’ “ means “ ‘reasonable and probable cause’ “ or “a state of facts as would lead a [person] of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion of the guilt of the accused.”  (People v. Uhlemann (1973) 9 Cal.3d 662, 666-667.)   To determine whether sufficient cause exists, the magistrate may “weigh the evidence, resolve conflicts, and give or withhold credence to particular witnesses.”  (Id. p. 667;  accord, Jones, supra, 4 Cal.3d at p 667.)   But a magistrate is not a trier of fact:  “He does not decide whether defendant committed the crime, but only whether there is ‘ “some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it.”  ‘ “ (People v. Slaughter (1984) 35 Cal.3d 629, 637.)

Where a magistrate has dismissed a charge, the prosecutor may nonetheless file an information alleging the dismissed charge, if the defendant has been held to answer on a transactionally related charge. (§ 739; 11  People v. Slaughter, supra, 35 Cal.3d at p. 633.)

The defendant may then challenge the information under section 995.   (Slaughter, at p. 633.)  “[W]hen the magistrate makes express findings of fact, the reviewing court is bound by such findings if supported by substantial evidence.   If[,] however, the magistrate renders no findings, the reviewing court may find the dismissal erroneous as a matter of law whenever the evidence provides a rational basis for believing that the defendant is guilty of the offense.”  (Ibid.)

Thus, the question here is did the magistrate issue findings of fact or a legal conclusion?   The answer to such a question is not always clear.   (People v. Superior Court (Day ) (1985) 174 Cal.App.3d 1008, 1019 & fn.   5 (Day ).)   But the answer begins with Jones, supra, 4 Cal.3d 660.   In Jones, the petitioners were charged with rape, oral copulation and sodomy.   After a preliminary hearing, the magistrate dismissed all three charges, finding that the victim went with the petitioners “willingly” and that no force was used.   The magistrate said, “ ‘I don't believe that 288(a) [oral copulation] took place.   I don't believe that 286 [sodomy] took place.’   “ (Jones, at p. 664.)   Although the charges were dismissed, the district attorney thereafter filed an information charging the petitioners again with rape, oral copulation and sodomy.   The court found that the magistrate made express findings of fact that the victim consented;  hence the crimes did not occur and the district attorney could not include them in the information.   (Cf. Jones with People v. Beagle (1972) 6 Cal.3d 441, 457 [magistrate's statement that the evidence was “ ‘too weak’ “ to show motive was a legal conclusion;  had the magistrate said defendant didn't start the fire at issue, that would have been a factual finding].)

People v. Farley (1971) 19 Cal.App.3d 215 at page 221, summarized Jones 's rule:  “[I]n cases where the magistrate makes factual findings which are fatal to the asserted conclusion that a particular offense was committed, the district attorney may not recharge that offense in the information.   A clear example of this would be where the magistrate expresses disbelief of a witness whose testimony is essential to the establishment of some element of the corpus delicti.  [¶] Where, however, the magistrate either expressly or impliedly accepts the evidence and simply reaches an ultimate legal conclusion therefrom-i.e., whether or not such evidence adds up to reasonable cause that the offense had been committed-such conclusion is open to challenge by inclusion in the information which action is thereafter subject to attack in the superior court under Penal Code section 995, and ultimately to appellate review.” 12  Another court explained the Jones rule this way:  “In the former situation [where factual findings are made,] the magistrate determines as a matter of fact there is no possible evidentiary support for the charge.   In the latter the magistrate accepts and considers the evidence amassed by the prosecution, but concludes that it is insufficient to establish the probable cause required to justify inclusion of the offense in the holding order.”  (Day, supra, 174 Cal.App.3d at p. 1015.)

While Jones 's distinction between a factual finding and a legal conclusion is “clear enough in the abstract,” it poses “difficulty in its practical implementation.”  (Day, supra,174 Cal.App.3d at pp. 1015-1016.)   But two cases help with implementing the Jones rule.   The first is Dudley v. Superior Court (1974) 36 Cal.App.3d 977 (Dudley ).   In Dudley, a complaint charged the petitioner with murder.   After a preliminary hearing, the magistrate reduced the charge to involuntary manslaughter.   In ruling, the magistrate made several comments, including, “ ‘I think it is a one-sided fight.   I think he took advantage when [the victim] was down, but I do not believe that those circumstances in the light of the autopsy surgeon's findings that they were moderate external injuries and do not show abandon and malignant heart.’  “ (Id. at p. 980.)

To determine whether those statements constituted a factual finding or a legal conclusion, the court distinguished Jones, which depended on an express finding that the sole witness was not credible.   In contrast, the magistrate in Dudley made “remarks leav[ing] considerable room for interpretation.”  (Dudley, supra, 36 Cal.App.3d at p. 981.)   Interpreting those statements, Dudley found “no showing that the magistrate disbelieved the testimony describing the homicidal assault which [was] the basis of the prosecution's case.   The unimpeached, credible evidence received at the preliminary examination supports an inference of malice and gives probable cause to try petitioner for murder, but the magistrate acted upon his personal opinion that the offense was no more than manslaughter.”   Thus, the court concluded that the magistrate's finding that the petitioner acted “without malice” was not a factual finding, and the district attorney was entitled to charge the petitioner with murder.  (Id. at p. 985;  see also Pizano v. Superior Court (1978) 21 Cal.3d 128, 133 [magistrate's finding of no malice was a legal conclusion:  “When, however, the magistrate either expressly or impliedly accepts the evidence and simply reaches the ultimate legal conclusion that it does not provide probable cause to believe the offense was committed, such conclusion is open to challenge by adding the offense to the information”];  People v. Superior Court (Henderson ) (1986) 178 Cal.App.3d 516, 523-524 [magistrate's specific finding that victim's death occurred during the heat of passion and/or a sudden quarrel did not preclude including murder in the information].)

The second case helpful to understanding and implementing the Jones rule is Walker v. Superior Court (1980) 107 Cal.App.3d 884 (Walker ).   In Walker, the evidence before the magistrate consisted primarily of Walker's (the petitioner) tape-recorded statement.   According to the statement, Walker owned a liquor store and knew the victim as a troublemaker and substance abuser.  (Id. at p. 887.)   One night when Walker was counting money, the victim entered the store and the two men argued.   The victim left, but not before threatening Walker.   Soon thereafter, an object was hurled through the store's window.   The victim reentered the store and renewed his threat to kill Walker.   Frightened, Walker grabbed his gun.   The victim ran while reaching under his coat as if to pull something from his waistband.   Walker fired his gun at the victim, hitting him.   Walker said he shot the victim under a belief his life was in jeopardy.  (Id. at p. 888.)

Although the magistrate was uncertain whether a complete self-defense had been shown, he found “that:  1) petitioner knew of the victim's bad reputation;  2) the victim threatened to kill petitioner and had engaged in aggressive conduct directed at petitioner;  and 3) petitioner was in fear for his personal safety.   Upon articulating those facts the magistrate ultimately determined that ‘there was sufficient provocation to rebut the presumption ․ of malice’ and held petitioner to answer for the lesser crime of manslaughter.”  (Walker, supra, 107 Cal.App.3d at p. 888.)  Walker found that the record “manifests a persuasive showing of circumstances mitigating any inference of malice.”  (Id. at p. 890.)   The magistrate accepted as true the finding that petitioner acted out of fear for his life, and although there was no express finding that deadly force was necessary, that finding was implicit.13  (Ibid.) The magistrate's determination that “the crucial element of malice was negated by the showing of sufficient provocation was the product of a factual rather than a legal conclusion based upon uncontroverted evidence.”  (Ibid.) Walker therefore held that the petitioner's motion to set aside the information charging him with murder should be granted and the charge reduced to manslaughter.

Similarly, the trial court here properly granted Lozano's motion to dismiss the murder charge and reduce it to manslaughter, because the magistrate made factual findings precluding the element of malice.   Murder is the unlawful killing of a human being with malice aforethought;  whereas manslaughter is an unlawful killing without malice. (§§ 187, subd. (a) & 192;  People v. Romero (2008) 44 Cal.4th 386, 402.)   The elements of murder therefore are (1) the killing of another person (or a fetus);  (2) the unlawfulness of the killing-i.e., the lack of legal excuse or justification;  and (3) malice aforethought.  (See, e.g., CALCRIM No. 520.)   Malice may be express or implied.   Express malice exists when there is an intent to kill, and implied malice exists when there is an awareness of the danger and a conscious disregard for life.  (People v. Rios (2000) 23 Cal.4th 450, 460.)

Although malice is implied where, as here, the homicide results from the use of a deadly weapon (Walker, supra, 107 Cal.App.3d at p. 889), the magistrate made factual findings fatal to the element of malice.   The magistrate began by referencing evidence that the victim, Esparza, was a large man, a member of the Rancho San Pedro gang, and, most important, an imminent threat of causing bodily injury or death to defendant or his companions.   The magistrate then said that although “this evidence in and of itself created only an imperfect self-defense,” 14 “defendant can be found guilty only of involuntary manslaughter and not of murder as charged.”   In other words, Lozano lacked malice aforethought.   The magistrate then cited a litany of evidence he found to be credible to support this conclusion, namely:

 Esparza was a member of a gang; 15

 Lozano knew that Rancho San Pedro gang members had almost killed, a year before, his companion, Melissa Smith, at the Village Pub;

 just before the shooting, Esparza hit or pushed Lozano's companions;

 just before the shooting, Esparza hit Lozano;

 Lozano rounded up his companions and got them into his truck to leave, which “is clearly indicative of a clear intent to leave the violence that was occurring ․ and negates any possible finding of express or implied malice on his part”;

 Esparza reached into Lozano's truck and might have gone so far as to place his entire upper body into the truck.

The magistrate emphasized that Lozano was leaving the scene when Esparza rushed up to the truck.   This evidenced a “clear intent” to “leave the violence.”   Only when Esparza thrust himself partially into the truck did Lozano shoot him.   Such facts preclude a finding of either an intent to kill (express malice) or a conscious disregard for life (implied malice).   Because substantial evidence therefore supports the magistrate's factual findings, the trial court properly granted Lozano's section 995 motion.

DISPOSITION

The petition for writ of mandate is denied.   The stay order is lifted.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. She is also known as Celia..  FN1. She is also known as Celia.

FN2. Because some of the witnesses share a last name, we refer to the witnesses by their first names..  FN2. Because some of the witnesses share a last name, we refer to the witnesses by their first names.

FN3. Sally did not see the bald guy inside the bar;  she only saw him outside the bar..  FN3. Sally did not see the bald guy inside the bar;  she only saw him outside the bar.

FN4. Sonia had already left in a separate car..  FN4. Sonia had already left in a separate car.

FN5. The People's objection on the ground of speculation was overruled..  FN5. The People's objection on the ground of speculation was overruled.

FN6. The People objected to this evidence as irrelevant to defendant's state of mind.   The court denied the motion to strike the detective's statements about what Barnes said and what Anthony said.   The general rule is that one level of hearsay is admissible at a preliminary hearing, but not multiple levels of hearsay.  (Correa v. Superior Court (2002) 27 Cal.4th 444, 451-454;  see also Penal Code, § 872, subd. (b) [notwithstanding Evidence Code section 1200, which renders hearsay generally inadmissible, at a preliminary hearing “the finding of probable cause may be based in whole or in part upon the sworn testimony of a law enforcement officer ․ relating the statements of declarants made out of court offered for the truth of the matter asserted”].).  FN6. The People objected to this evidence as irrelevant to defendant's state of mind.   The court denied the motion to strike the detective's statements about what Barnes said and what Anthony said.   The general rule is that one level of hearsay is admissible at a preliminary hearing, but not multiple levels of hearsay.  (Correa v. Superior Court (2002) 27 Cal.4th 444, 451-454;  see also Penal Code, § 872, subd. (b) [notwithstanding Evidence Code section 1200, which renders hearsay generally inadmissible, at a preliminary hearing “the finding of probable cause may be based in whole or in part upon the sworn testimony of a law enforcement officer ․ relating the statements of declarants made out of court offered for the truth of the matter asserted”].)

FN7. “Spanko” refers to Esparza's dead brother who was also a member of the gang..  FN7. “Spanko” refers to Esparza's dead brother who was also a member of the gang.

FN8. All further undesignated statutory references are to the Penal Code..  FN8. All further undesignated statutory references are to the Penal Code.

FN9. Lozano cites Caple for the proposition that the trial court had the inherent authority to send the matter to the magistrate.  Caple, however, involved section 995a, subdivision (b)(1), which permits a trial court to send a matter back to the magistrate upon the prosecutor's motion.   We do not deal here with a prosecutor's motion..  FN9. Lozano cites Caple for the proposition that the trial court had the inherent authority to send the matter to the magistrate.  Caple, however, involved section 995a, subdivision (b)(1), which permits a trial court to send a matter back to the magistrate upon the prosecutor's motion.   We do not deal here with a prosecutor's motion.

FN10. That section provides:  “ ‘(5) When, at or before the preliminary examination or prior to the filing of an order pursuant to Section 872, the magistrate determines that the offense is a misdemeanor, in which event the case shall proceed as if the defendant had been arraigned on a misdemeanor complaint.’  “ (People v. Silva,supra, 36 Cal.App.4th at p. 235, italics omitted.).  FN10. That section provides:  “ ‘(5) When, at or before the preliminary examination or prior to the filing of an order pursuant to Section 872, the magistrate determines that the offense is a misdemeanor, in which event the case shall proceed as if the defendant had been arraigned on a misdemeanor complaint.’  “ (People v. Silva,supra, 36 Cal.App.4th at p. 235, italics omitted.)

FN11. Section 739 provides in part:  “When a defendant has been examined and committed, as provided in Section 872, it shall be the duty of the district attorney of the county in which the offense is triable to file in the superior court of that county within 15 days after the commitment, an information against the defendant which may charge the defendant with either the offense or offenses named in the order of commitment or any offense or offenses shown by the evidence taken before the magistrate to have been committed.”.  FN11. Section 739 provides in part:  “When a defendant has been examined and committed, as provided in Section 872, it shall be the duty of the district attorney of the county in which the offense is triable to file in the superior court of that county within 15 days after the commitment, an information against the defendant which may charge the defendant with either the offense or offenses named in the order of commitment or any offense or offenses shown by the evidence taken before the magistrate to have been committed.”

FN12. In Farley, the magistrate stated:  “ ‘I just feel, after the hearsay is stricken, the evidence that goes to those is insufficient,’ and made the following finding:  ‘With reference to count 1 and count 2, ․ I will make a finding that there is not reasonable and probable cause with reference to those sections and order that they be dismissed.’  “ (19 Cal.App.3d at p. 219.)  Farley found that these statements did not amount to factual findings..  FN12. In Farley, the magistrate stated:  “ ‘I just feel, after the hearsay is stricken, the evidence that goes to those is insufficient,’ and made the following finding:  ‘With reference to count 1 and count 2, ․ I will make a finding that there is not reasonable and probable cause with reference to those sections and order that they be dismissed.’  “ (19 Cal.App.3d at p. 219.)  Farley found that these statements did not amount to factual findings.

FN13. Walker 's notion that a factual finding can be implied has been criticized:  “A factual finding fatal to a criminal allegation, which prevents the prosecution from even filing the charge, should not be established by guesswork.   Superior courts reviewing Penal Code section 995 motions, and appellate courts resolving extraordinary writ petitions, should not be reviewing the impromptu, often spontaneous remarks of magistrates and forced to speculate between implied factual findings and legal conclusions.   Absent additional guidance from our Supreme Court we conclude that the notion of implied Jones findings is suspect and should be afforded no judicial recognition, except under the limited circumstance exemplified by Walker.”  (Day, supra, 174 Cal.App.3d at p. 1019.).  FN13. Walker 's notion that a factual finding can be implied has been criticized:  “A factual finding fatal to a criminal allegation, which prevents the prosecution from even filing the charge, should not be established by guesswork.   Superior courts reviewing Penal Code section 995 motions, and appellate courts resolving extraordinary writ petitions, should not be reviewing the impromptu, often spontaneous remarks of magistrates and forced to speculate between implied factual findings and legal conclusions.   Absent additional guidance from our Supreme Court we conclude that the notion of implied Jones findings is suspect and should be afforded no judicial recognition, except under the limited circumstance exemplified by Walker.”  (Day, supra, 174 Cal.App.3d at p. 1019.)

FN14. Perfect self-defense applies when a defendant has an honest or actual and reasonable belief that it is necessary to defend oneself from imminent peril to life or great bodily injury.   Imperfect self-defense applies when the defendant has an honest or actual but unreasonable belief that it is necessary to defend oneself from imminent peril to life or great bodily injury.  (In re Christian S. (1994) 7 Cal.4th 768, 773, 783, citing People v. Flannel (1979) 25 Cal.3d 668, 674;  § 197.).  FN14. Perfect self-defense applies when a defendant has an honest or actual and reasonable belief that it is necessary to defend oneself from imminent peril to life or great bodily injury.   Imperfect self-defense applies when the defendant has an honest or actual but unreasonable belief that it is necessary to defend oneself from imminent peril to life or great bodily injury.  (In re Christian S. (1994) 7 Cal.4th 768, 773, 783, citing People v. Flannel (1979) 25 Cal.3d 668, 674;  § 197.)

FN15. Officer Adriana Bravo testified as a gang expert for the defense.   The magistrate overruled the People's objection to her testimony.   We find that the gang evidence was properly admitted.   Bravo testified that the Village Pub was a known hangout for Rancho San Pedro gang members.   Edwin Barnes, the security guard, told Detective Brazumoto that he heard someone say “ ‘Rancho’ “ that night.   This, coupled with the belligerent behavior of the victim and his companions and that Lozano knew his girlfriend had been beaten by Rancho San Pedro gang members a year before at the Village Pub, was sufficient to make the gang evidence relevant..  FN15. Officer Adriana Bravo testified as a gang expert for the defense.   The magistrate overruled the People's objection to her testimony.   We find that the gang evidence was properly admitted.   Bravo testified that the Village Pub was a known hangout for Rancho San Pedro gang members.   Edwin Barnes, the security guard, told Detective Brazumoto that he heard someone say “ ‘Rancho’ “ that night.   This, coupled with the belligerent behavior of the victim and his companions and that Lozano knew his girlfriend had been beaten by Rancho San Pedro gang members a year before at the Village Pub, was sufficient to make the gang evidence relevant.

KLEIN, P. J. KITCHING, J.

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