PEOPLE v. SHOLES

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Court of Appeal, Second District, Division 3, California.

The PEOPLE, Petitioner, v. SUPERIOR COURT of the State of California, for the County of Los Angeles, Respondent, Tyrone Anthony SHOLES, Real Party in Interest.

No. B087468.

Decided: January 12, 1995

Gil Garcetti, Dist. Atty., Diana L. Summerhayes, and Dirk L. Hudson, Deputies Dist. Atty., for petitioner. No appearance by respondent. Bruce A. Hoffman, Alternate Public Defender, Patrick Thomason and Michael Russo, Deputies Alternate Public Defender, for real party in interest.

The People of the State of California seek a writ of mandate/prohibition directing respondent Superior Court of Los Angeles County to reinstate a special circumstance allegation of a prior conviction of murder (Pen.Code, § 190.2, subd. (a)(2)) against real party in interest, Tyrone Anthony Sholes.1

Upon Sholes's motion pursuant to section 995, the trial court dismissed the special circumstance allegation based upon the failure of the People to present evidence of the special circumstance at the preliminary hearing.   The trial court also denied the People's request to remand the matter to the magistrate, without setting aside the information, for correction of the omission.  (§ 995a, subd. (b)(1).) 2

We conclude the People are required to present evidence supporting special circumstance allegations at the preliminary hearing even when such allegations are based upon prior convictions.   However, the trial court should have remanded the matter to the magistrate for correction of this “minor” omission.   Accordingly, the petition is denied in part and granted in part.

FACTUAL AND PROCEDURAL BACKGROUND

An information filed March 23, 1994, charged Sholes with murder.   On July 11, 1994, the People amended the information to allege four prior convictions.   One of the prior convictions allegations related to a 1976 conviction of second-degree murder.

On July 20, 1994, the People filed a motion asking the trial court to remand the case to the magistrate, without setting aside the information, for a limited hearing with respect to the prior murder conviction.  (§ 995a, subd. (b)(1).)   On July 25, 1994, the People filed a second amended information alleging, inter alia, the 1976 murder conviction as a special circumstance.  (§ 190.2, subd. (a)(2).)

On August 12, 1994, Sholes filed motions opposing the People's request for remand to the magistrate and seeking to set aside the special circumstance allegation.

On August 18, 1994, the trial court denied the People's request for remand and granted Sholes's motion to set aside the special circumstance allegation.   The trial court found there had been an error of omission which was “readily correctable.”   However, it concluded the omission could not be considered “minor” in that it exposed Sholes to life without the possibility of parole or the death penalty and the preliminary hearing might have been handled differently had the special circumstance been alleged from the outset.

The People took this writ and filed an appeal.3

On October 24, 1994, this court stayed the proceedings below and issued an alternative writ directing respondent court to show cause why a peremptory writ of mandate should not issue.

CONTENTIONS

The People contend special circumstances based entirely on prior convictions are akin to allegations of prior conviction enhancements and need not be shown by the evidence at a preliminary hearing.   Alternatively, the People seek an order directing the trial court, without setting aside the information, to order further proceedings before the magistrate to allow the People to present probable cause with respect to the special circumstance allegation.

DISCUSSION

1. Special circumstance allegations must be supported by probable cause produced at the preliminary hearing.4

 A section 995 motion properly may be used to attack the sufficiency of the evidence to support a special circumstance allegation.   (People v. Ainsworth (1988) 45 Cal.3d 984, 1021–1022, fn. 22, 248 Cal.Rptr. 568, 755 P.2d 1017;  People v. Superior Court (Mendella) (1983) 33 Cal.3d 754, 763, 191 Cal.Rptr. 1, 661 P.2d 1081;  Ghent v. Superior Court (1979) 90 Cal.App.3d 944, 954, 153 Cal.Rptr. 720.)

 The availability of a motion pursuant to section 995 necessarily implies a duty on the part of the People to produce evidence at the preliminary hearing sufficient to hold the accused to answer on special circumstance allegations.

 Accordingly, notwithstanding the superficial similarity between prior conviction allegations which may be added by forthwith amendment “[w]henever it shall be discovered that a pending ․ information does not charge all prior felonies of which the defendant has been convicted” (§ 969a), special circumstance allegations must be supported by a showing of probable cause sufficient to hold the accused to answer.   This is so even where the special circumstance consists entirely of a prior conviction of murder.

Therefore, to the extent the People seek to reinstate the special circumstance allegation without having to offer probable cause, the petition for writ is denied.

2. Omission of proof of a prior conviction of murder is minor within the meaning of section 995a, subdivision (b)(1).

 The preliminary hearing in this case was presented based on the hearsay testimony of a qualified law enforcement officer.  (§ 872, subd. (d).)  The trial court noted the cross-examination of the testifying officer was “very extensive.”   It also observed that, because the special circumstance allegation of a prior conviction of murder is “something unrelated to how this charge was alleged to have been committed,” proof of the allegation would not have changed radically what happened at the preliminary hearing.

Nonetheless, the trial court apparently was swayed by defense counsel's argument that, had the case been alleged as a capital case at the time of the preliminary hearing, it would have been handled differently in many respects.   Specifically, and probably most important here, defense counsel assertedly would have attempted to elicit information favorable to Sholes to influence the prosecutor's decision as to whether the People would elect to seek the death penalty.

The trial court concluded, “I don't know whether there would be a radical change in the preliminary hearing․  [Defense counsel] has argued strenuously that it would or might.  [The prosecutor] has argued equally strenuously and vigorously that it probably would not.   I don't think that it is my problem to now speculate on that.   I think where you change the nature of the case in this way to one of the ultimate sanction is being applied, I just have a real problem construing that as a minor change.”

 We conclude the trial court's ruling in this regard was flawed.   In denying the People's motion for remand to the magistrate, the trial court took the term “minor” in section 995a, subdivision (b)(1), out of context.   The section does not focus on whether the omitted proof will work a major or minor change on the charges pending against the accused.   As noted in Caple v. Superior Court (1987) 195 Cal.App.3d 594, 241 Cal.Rptr. 735, whenever the remand provision is employed to cure a fatal defect in the information, there has been a major change from the point of view of the accused.

 The relevant inquiry is whether the proof required to cure the defect is minor in relation to the whole of the proof against the defendant.   As held in Caple, “a ‘minor omission’ refers to one that is comparatively unimportant.   Thus, an evidentiary defect will trigger the remand provisions of section 995a, subdivision (b)(1), whenever the omission is minor when considered in relation to the balance of the evidence required in order to hold the accused to answer.”  (Caple v. Superior Court, supra, 195 Cal.App.3d at p. 602, 241 Cal.Rptr. 735.)

The Legislature expressly has approved an expeditious procedure by which the People may offer prima facie proof of a prior conviction.  (See § 969b.)   The remaining element of identity would require the brief testimony of a finger print expert.   We therefore conclude the omission of proof of the prior conviction of murder is minor within the meaning of section 995a, subdivision (b)(1).

This conclusion is consistent with the perceived Legislative purpose in enacting section 995a, subdivision (b)(1), that meritorious prosecutions not be barred.   Additionally, use of the remand provisions of section 995a, subdivision (b)(1), prevents unnecessary duplication of the preliminary hearing already conducted in this case, thereby saving time and the public fisc.

Absent the remand provision, the People would be forced to dismiss and refile the information (§ 1387) and conduct another preliminary hearing which would be duplicative of the first in every respect except it would include proof of Sholes's prior conviction of murder.   Such duplication properly is avoided by employing section 995a, subdivision (b)(1).

With respect to Sholes's assertion the preliminary hearing would have been conducted differently had the capital nature of the offense been known at that time, Sholes does not point to any specific matter he would have explored to influence the prosecutor's decision to seek the death penalty.   Moreover, nothing limits defense counsel's ability to present evidence bearing on that decision outside the formal setting of a preliminary hearing.   There simply is no need to reconduct the entire preliminary hearing in order to bring forth information bearing on this decision.

We conclude the omission of proof of a prior conviction of murder is minor within the meaning of section 995a, subdivision (b)(1).   Therefore, with respect to the People's request for remand to the magistrate, without setting aside the information, to offer proof of the prior conviction of murder, the writ is granted.

3. The preliminary hearing evidence indicates Sholes was the actual shooter, not merely an aider and abettor.

 At oral argument, counsel for Sholes argued, for the first time, that remand under section 995a, subdivision (b)(1), would involve not only proof of the prior conviction of murder but also proof that Sholes intended to kill the victim because Sholes was an aider and abettor.

Sholes is correct to the extent he contends the prior murder conviction special circumstance (§ 190.2, subd. (a)(2)) requires intent to kill where the accused is not the actual killer.  (§ 190.2, subds. (b), (c);  see also People v. Malone (1985) 165 Cal.App.3d 31, 37–38, 211 Cal.Rptr. 210, disapproved on another point in People v. Hendricks (1987) 43 Cal.3d 584, 596, fn. 3, 238 Cal.Rptr. 66, 737 P.2d 1350.)

However, this requirement is inapplicable here because the preliminary hearing evidence indicates Sholes was the actual shooter.

Counsel for Sholes was asked to lodge with this court the transcript of the preliminary hearing as counsel offered to do at oral argument.   Review of the transcript reveals the victim, Danny Northern, was shot three times and died as a result of the wounds.

Investigator George Leiker testified the shooting took place in room 11 of the Celestial Hotel on the evening of August 27, 1993.   Officers found expended and live .22 shell casing outside the room as well as a clip for a .22 rifle.

Janet Everage told Leiker that prior to the shooting she had been in room 11 with a man named Jerry when another individual came to the door inquiring about Northern.   The man at the door, whom Everage later identified as Thaddeus Sholes, the brother of Tyrone Sholes, said he needed to retrieve a .380 pistol Thaddeus's brother had sold to Northern.   Thaddeus Sholes noticed a .380 pistol in the room, said that was the gun he had come to retrieve and that he wanted it.   Everage told Thaddeus to return in 15 minutes to speak with Northern.

When Northern returned to the room, he was accompanied by an individual Everage knew as Zeke.   Everage told Northern a man had been looking for the gun and they sat on the bed talking.   Zeke sat in a chair holding the .380 pistol.

As they spoke Sholes and another individual entered the room and Zeke left the room behind them.   Sholes produced a long gun and pointed it at Everage.   She immediately turned away and covered up.   Everage heard gunshots but did not uncover.   When she did, she realized Northern had been shot.

Leiker interviewed Zeke, aka Julian Watts, on October 7, 1993.   Zeke said three individuals entered the room, one of whom was armed with a rifle.   He pointed the rifle at the bed and fired two to four shots.   Zeke struggled with the person with the rifle on the porch.   A third suspect approached Zeke with a handgun.   Zeke jumped from the porch to the ground and fled.   Zeke identified Sholes from a photographic lineup as the man with the rifle.

Based on the foregoing, we conclude the evidence adduced at the preliminary hearing indicated Sholes was the actual shooter, not merely an aider and abettor.   Thus, defense counsel's strategy, vis-a-vis intent to kill, would not have been altered in any material way had the special circumstance been alleged at the time of the preliminary hearing.

Accordingly, we find no basis in the belated argument respecting intent to kill which alters our conclusion that proof of the prior conviction underlying the special circumstance allegation was a minor omission which can expeditiously be cured without rehearing a substantial portion of the testimony.

CONCLUSION

The People must produce probable cause to support special circumstance allegations at the preliminary hearing.   However, in the circumstances of this case omission of proof of a prior conviction of murder as a special circumstance pursuant to section 190.2, subdivision (a)(2), is minor within the meaning of section 995a, subdivision (a)(1), and may be corrected under the procedure outlined there.

Accordingly, the petition for writ is denied in part and granted in part.

DISPOSITION

The alternative writ, having served its purpose, is recalled and quashed.

The petition for writ of mandate is denied to the extent the People seek to allege the special circumstance of a previous conviction of murder without submitting proof of the allegation at the preliminary hearing, and granted to the extent it seeks to require the trial court, without setting aside the information, to remand the matter to the magistrate for further proceedings pursuant to section 995a, subdivision (a)(1).

FOOTNOTES

1.   All subsequent statutory references are to the Penal Code, unless otherwise specified.

2.   The relevant portion of section 995a, subdivision (b)(1), provides:  “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.”

3.   The trial court's dismissal of part of an information is appealable.  (§ 1238, subd. (a)(1);  People v. Fraijo (1977) 78 Cal.App.3d 977, 980–981, 144 Cal.Rptr. 424.)   However, the People seek writ relief asserting an appeal is not an adequate remedy.   We agree, and address the merits of the People's petition for writ.  (See People v. Superior Court (Martinez) (1993) 19 Cal.App.4th 738, 743, 23 Cal.Rptr.2d 733;  People v. Superior Court (Bolden) (1989) 209 Cal.App.3d 1109, 1112, 257 Cal.Rptr. 678;  People v. Superior Court (Smart) (1986) 179 Cal.App.3d 860, 862, 225 Cal.Rptr. 62.)

4.   The transcript of the proceedings before the trial court reveals the People conceded the special circumstance had to be supported by evidence produced at the preliminary hearing.   Sholes has not asserted the People's failure to raise the issue below as a bar to maintaining it on appeal.  (See People v. Saunders (1993) 5 Cal.4th 580, 589–590, 20 Cal.Rptr.2d 638, 853 P.2d 1093;  People v. Belmontes (1988) 45 Cal.3d 744, 766–767, 248 Cal.Rptr. 126, 755 P.2d 310;  People v. Witt (1975) 53 Cal.App.3d 154, 169, 125 Cal.Rptr. 653.)   We reach the merits of the argument as it is one likely to recur.  (Liberty Mut. Ins. Co. v. Fales (1973) 8 Cal.3d 712, 715–716, 106 Cal.Rptr. 21, 505 P.2d 213;  People v. Superior Court (Hamilton) (1991) 230 Cal.App.3d 1592, 1594, 281 Cal.Rptr. 900.)

KLEIN, Presiding Justice.

CROSKEY and ALDRICH, JJ., concur.