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Court of Appeal, Second District, Division 5, California.

The PEOPLE, Plaintiff and Appellant, v. Michael Sean WILLIAMS, Defendant and Respondent.

No. B038233.

Decided: December 01, 1989

Ira Reiner, Dist. Atty., Harry B. Sondheim, Head, Appellate Div., and Rodolfo A. Aguirre, Deputy Dist. Atty., for plaintiff and appellant. Wilbur F. Littlefield, Public Defender, under appointment by the Court of Appeal, and Laurence M. Sarnoff, Sylvia Patton and Nori Anne Walla, Deputy Public Defenders, for defendant and respondent.

The People appeal from an order of the superior court setting aside an information charging respondent, Michael Sean Williams, with one count of possession of cocaine (Health & Saf. Code, § 11350, subd. (a)) and dismissing the action in case No. A574471, pursuant to Penal Code section 995.   The People contend that the undercover sale to respondent of cocaine which the police obtained from an unrelated criminal case was not improper for failure of the police to have previously destroyed the cocaine pursuant to Health and Safety Code sections 11473 and 11473.5.   We agree and reverse and remand the matter for the purpose of reinstating the information.


During the evening of August 21, 1987, Los Angeles County Deputy Sheriff Felix Osorio was working in an undercover capacity with Monrovia Police Department Narcotics Detective Donald Lacher.   Detective Lacher gave Deputy Osorio ziplock baggies containing cocaine which the detective had obtained from the Hawthorne Police Department.   As Deputy Osorio stood on East Cherry Street in Monrovia, Williams approached in his car.   Deputy Osorio asked Williams what he wanted.   Williams said he wanted “15,” which the deputy understood as street slang for $15 worth of rock cocaine.   The deputy told Williams that he was “only selling $20 rocks” that evening.   Deputy Osorio then handed Williams a baggie with one rock of the cocaine which he had previously obtained from Detective Lacher.   Williams handed the deputy $15.   When Williams drove away, Deputy Osorio gave a description of Williams and his car to backup police officers, who thereafter arrested Williams but were unable to recover the cocaine he had purchased.

At the conclusion of the preliminary hearing, Williams argued that the evidence was insufficient because the cocaine sold was never recovered and that the “state conduct” was unlawful.   The magistrate rejected the contentions and held Williams to answer on the charge of possession of cocaine.

 Thereafter, Williams moved in the superior court to set aside the information pursuant to Penal Code section 995 based upon the alleged insufficiency of the evidence introduced at the preliminary hearing and the magistrate's unlawful commitment of Williams to stand trial.1  Williams urged that police use of cocaine from another case failed to conform to the statutes governing the disposition of narcotic contraband (Health & Saf. Code, §§ 11473, 11473.5),2 as discussed in People v. Backus (1979) 23 Cal.3d 360, 152 Cal.Rptr. 710, 590 P.2d 837, and that such contraband could not be used against him.

At the hearing on the motion to set aside the information, the court remarked that the police had obtained the cocaine without any legal authority.   The court granted Williams' motion to set aside the information and dismissed the case.

This appeal by the People followed.


Penal Code section 995 provides in pertinent part that upon motion the information “shall” be set aside by the court in which the defendant is arraigned if before the filing of the information the defendant “had not been legally committed by a magistrate” (subd. (a)(2)(A)) or “had been committed without reasonable or probable cause” (subd. (a)(2)(B)).3  Regarding the requirement that the defendant be “legally committed,” the California Supreme Court in Jennings v. Superior Court (1967) 66 Cal.2d 867, 59 Cal.Rptr. 440, 428 P.2d 304 explained that the phrase refers to the preliminary hearing examination and the holding of the defendant to answer.  (Id. at p. 874, 59 Cal.Rptr. 440, 428 P.2d 304.)  “ ‘An information, of course, will not be set aside merely because there has been some irregularity or minor error in procedure in the preliminary examination.  [Citation.]  But where it appears that, during the course of the preliminary examination, the defendant has been denied a substantial right, the commitment is unlawful within the meaning of section 995, and it must be set aside upon timely motion.  [Citations.]’ ”  (Ibid., emphasis added in Jennings;  see Foster v. Superior Court (1980) 107 Cal.App.3d 218, 224, 165 Cal.Rptr. 701.)

 Jennings v. Superior Court, supra, 66 Cal.2d at pages 874–875, 59 Cal.Rptr. 440, 428 P.2d 304 and People v. Pompa–Ortiz (1980) 27 Cal.3d 519, 523, 165 Cal.Rptr. 851, 612 P.2d 941 describe a myriad of situations involving unlawful commitments because of infringements of “substantial rights,” including the rights to counsel, cross-examination and the presentation of an affirmative defense at the preliminary hearing, and impairments to substantial procedural rights such as the statutory rights to complete the hearing at one session and to have a closed hearing.   An accused is also not “legally committed” where the preliminary hearing is belatedly conducted beyond the statutory 10-court-day period from arraignment (Irving v. Superior Court (1979) 93 Cal.App.3d 596, 155 Cal.Rptr. 654;  see Landrum v. Superior Court (1981) 30 Cal.3d 1, 6, 177 Cal.Rptr. 325, 634 P.2d 352), where there is a potential for bias or an appearance of a conflict of interest by the prosecution (People v. Superior Court (Greer) (1977) 19 Cal.3d 255, 263, fn. 5, 137 Cal.Rptr. 476, 561 P.2d 1164), or where the defendant is mentally incompetent (Bayramoglu v. Superior Court (1981) 124 Cal.App.3d 718, 726–729, 176 Cal.Rptr. 487;  Chambers v. Municipal Court (1974) 43 Cal.App.3d 809, 813, 118 Cal.Rptr. 120).   Accordingly, it appears that a “substantial right” of a defendant has been implicated, within the meaning of Jennings, supra, 66 Cal.2d at pages 874–875, 59 Cal.Rptr. 440, 428 P.2d 304 and Penal Code section 995, subdivision (a)(2)(A), when the integrity of the fact-finding process or the fundamental procedural structure of the preliminary hearing has been significantly affected.   Consistent with a perceived “expanded notion of preliminary hearings” (People v. Hertz (1980) 103 Cal.App.3d 770, 775, 163 Cal.Rptr. 233), a section 995 motion may also be brought to litigate, for example, the failure to seek the requisite restitution prior to prosecution for welfare fraud (People v. McGee (1977) 19 Cal.3d 948, 968, fn. 9, 140 Cal.Rptr. 657, 568 P.2d 382;  People v. Crudgington, supra, 88 Cal.App.3d at p. 300, 151 Cal.Rptr. 737), because it is an issue involving a statutory or constitutional “defect in the institution of the prosecution” (People v. McGee, supra, at p. 968, 140 Cal.Rptr. 657, 568 P.2d 382).

 With these principles in mind, we turn to Williams' claim that the police use of narcotics from a closed case violated Health and Safety Code sections 11473 and 11473.5 and the holding in People v. Backus, supra, 23 Cal.3d 360, 152 Cal.Rptr. 710, 590 P.2d 837.   Williams urges that such “flagrant disregard of a clear and unambiguous law on the part of the prosecution” amounts to “outrageous governmental conduct triggering a violation of due process.”   Although Williams does not analyze these claims in the context of section 995 and the violation of a “substantial right,” perhaps because of the properly perceived difficulty in doing so, it is the appropriate framework for our analysis.   The thrust of Williams' argument is based upon a literal reading of Backus, which results in its tortured and inappropriate application to the present and quite different case.

In People v. Backus, supra, the Supreme Court held that police officers were not immune from prosecution for conspiracy to pervert and obstruct justice in furnishing heroin for their informants' use because the officers failed to comply with statutory provisions regarding the disposal of heroin previously seized and purchased by them.   Hence, the Supreme Court in Backus concluded that the evidence before the grand jury did “not establish as a matter of law that defendants were acting in performance of their official duties when they supplied heroin to the named recipients.”  (23 Cal.3d at p. 385, 152 Cal.Rptr. 710, 590 P.2d 837.)   The officers in Backus were obligated by the relevant statutes 4 not to divert the contraband for their investigatory activities and informant uses because due process required that potential evidence from the prior cases be preserved and, in any event, the Legislature intended “that controlled substances seized by peace officers not be dissipated or find their way into the hands of persons not authorized to possess them․”  (Ibid.)

However, the evil confronted in Backus was not just that the contraband became unavailable because it was given to informants by the police.   Significantly, the contraband was distributed by the police with the intent or knowledge that it would likely be consumed.   That situation is in stark contrast to the present case where the police intended only to provide sufficient possession of the cocaine to establish an offense and then to recover the contraband.  (See People v. Mijares (1971) 6 Cal.3d 415, 422, 99 Cal.Rptr. 139, 491 P.2d 1115;  People v. Hampton (1981) 115 Cal.App.3d 515, 522, 171 Cal.Rptr. 312.)

 Moreover, we find no violation of the statutes pertaining to the disposition of contraband.  Health and Safety Code section 11473 requires that “upon conviction of the owner or defendant [the contraband seized shall] be ordered destroyed by the court in which the conviction was had.”  Health and Safety Code section 11473.5 requires that in a “case in which no trial was had or which has been disposed of by way of dismissal or otherwise than by way of conviction, [the unlawfully possessed contraband] shall be destroyed by order of the court․”  Neither statute specifies when the contraband should be destroyed.  Penal Code section 1417.6 requires that narcotics “introduced or filed as an exhibit shall be, by order of the trial court, destroyed or otherwise disposed of under conditions provided in the order no sooner than 60 days following the final determination of the criminal action or proceeding.”   It is thus apparent that the statutory mandate to ultimately destroy the contraband at some unspecified time after the 60–day period does not lead to the conclusion that the contraband in the present case was used, as Williams urges, in “disregard of a clear and unambiguous law,” purportedly constituting outrageous governmental conduct and a violation of due process.

Williams specifically disavows any claim of outrageous governmental conduct or a due process violation based on the nature of the so-called “reverse sting” operation or any claim of entrapment.  (See Hampton v. United States (1976) 425 U.S. 484, 489–491, 96 S.Ct. 1646, 1649–1650, 48 L.Ed.2d 113;  United States v. Russell (1973) 411 U.S. 423, 431–432, 93 S.Ct. 1637, 1642–1643, 36 L.Ed.2d 366;  People v. McIntire (1979) 23 Cal.3d 742, 748, fn. 1, 153 Cal.Rptr. 237, 591 P.2d 527;  People v. Peppars (1983) 140 Cal.App.3d 677, 685–687, 189 Cal.Rptr. 879.)   To the extent that Williams presents an analogy to such situations in his claim of outrageous governmental conduct by the alleged disregard of statutes pertaining to the disposal of contraband, he seeks, as alleged in his section 995 motion, to create a new context and procedure for effectively suppressing evidence because of “illegal police conduct.”   We decline to indulge this creative effort.

The effort is somewhat similar to that discussed in People v. Superior Court (Orecchia) (1976) 65 Cal.App.3d 842, 134 Cal.Rptr. 361.   In Orecchia, the police employed a 17-year-old minor as a decoy in an undercover law enforcement effort to purchase marijuana by infiltrating among high school drug traffickers.   The defendants in Orecchia maintained that the employment by the police of a minor as a decoy in undercover law enforcement activities involving the purchase of marijuana constituted a statutory violation (Health & Saf. Code, § 11361, subd. (a)), and that the “ ‘evil’ ” inherent in this form of undercover activity could only be remedied by dismissal of the charges, analogous to a case of entrapment.  (People v. Superior Court (Orecchia), supra, 65 Cal.App.3d at p. 845, 134 Cal.Rptr. 361.)   The court pointed out the inappropriateness of the trial court's “ ‘home-grown’ ” remedy of striking parts of the information and construed the language in the statute allegedly violated as not directed to preclude the use of minors as decoys in undercover marijuana purchases which are supervised and controlled by law enforcement agencies.  (Id. at p. 846, 134 Cal.Rptr. 361.)

Similarly, we do not construe the language in the statutes alleged to have been violated in the present case as precluding the legitimate police use of undisposed contraband.   We also do not perceive any “ ‘evil’ policy” (65 Cal.App.3d at p. 846, 134 Cal.Rptr. 361) or outrageous governmental conduct in the use of a “reverse sting” operation whereby law enforcement officers pose as street drug dealers, sell contraband to those who approach them and arrest the purchasers for possession of the drug sold.   Indeed, in such a law enforcement operation, the officers have immunity regarding their possession of contraband, and the operation is a legitimate and recognized technique for deterring street drug trafficking.  (See People v. Backus, supra, 23 Cal.3d at p. 382, 152 Cal.Rptr. 710, 590 P.2d 837;  Health & Saf. Code, § 11367.)   The police officers' immunity is not undermined just because they have “recycled” cocaine from an unrelated closed case for legitimate use in a “reverse sting” operation.

In conclusion, we cannot conceive of how or why statutes pertaining to the destruction of evidence from an unrelated closed case and the holding in Backus could justify the granting of a motion pursuant to Penal Code section 995.  Backus is factually dissimilar and not controlling in the present situation.   Williams has no constitutional or other right to purchase only “unrecycled” street cocaine which has not been obtained by the police from another case.   Even assuming, which we do not, that the police committed a technical statutory violation, it pertained only to an unrelated closed case and was thus unlikely to have violated the rights of any other defendant.   Accordingly, Williams was not denied a “substantial right,” and was legally committed within the meaning of Penal Code section 995.


The order under review is reversed, and the matter is remanded with instructions to reinstate the information in case number A574471.


1.   Exhibits in support of the section 995 motion, consisting of declarations by Detective Lacher and a deputy district attorney and a court order, revealed that the police obtained a court order permitting them to borrow from another police department rock cocaine from a closed and unrelated case.   However, it is the preliminary hearing which is under review, and matters outside the transcript of the preliminary hearing cannot be considered.  (Stanton v. Superior Court (1987) 193 Cal.App.3d 265, 270, 239 Cal.Rptr. 328;  People v. Crudgington (1979) 88 Cal.App.3d 295, 299, 151 Cal.Rptr. 737.)   On appeal, the superior court judge's ruling must be ignored;  the appellate court directly reviews the ruling on the evidence before the magistrate.  (See People v. Laiwa (1983) 34 Cal.3d 711, 718, 195 Cal.Rptr. 503, 669 P.2d 1278.)   Accordingly, the exhibits in support of the section 995 motion in the superior court are outside the record on this appeal and may not be considered by this court.   Nonetheless, the preliminary hearing did establish that the cocaine used was obtained from another police department, and it is apparent and virtually stipulated that the cocaine was from an unrelated closed case.

2.   Health and Safety Code section 11473 provides as follows:  “All seizures under provisions of this chapter, except seizures of vehicles, boats, or airplanes, as specified in subdivision (e) of Section 11470, or seizures of moneys, negotiable instruments, securities, or other things of value as specified in subdivision (f) of Section 11470, shall upon conviction of the owner or defendant, be ordered destroyed by the court in which conviction was had.”Health and Safety Code section 11473.5 provides as follows:  “All seizures of controlled substances, instruments, or paraphernalia used for unlawfully using or administering a controlled substance which are in possession of any city, county, or state official as found property, or as the result of a case in which no trial was had or which has been disposed of by way of dismissal or otherwise than by way of conviction, shall be destroyed by order of the court, unless the court finds that the controlled substances, instruments, or paraphernalia were lawfully possessed by the defendant.”

3.   Although Williams urged at trial that there was no reasonable or probable cause to commit him because the cocaine he purchased was never recovered and the evidence at the preliminary hearing was thus insufficient, he has properly abandoned that claim on appeal.   Indeed, the officers' testimony, even without the contraband, provided a rational basis for assuming the possibility that an offense had been committed and that the accused was guilty of it.  (Rideout v. Superior Court (1967) 67 Cal.2d 471, 474, 62 Cal.Rptr. 581, 432 P.2d 197;  People v. Patino (1979) 95 Cal.App.3d 11, 25–26, 156 Cal.Rptr. 815.)   To the extent that Williams urges on appeal that the competent evidence is insufficient because evidence regarding his possession of the contraband should have been suppressed, the contention is unavailing, as is apparent from the ensuing discussion.

4.   The current statutes dealing with the disposition of narcotics (Health & Saf. Code, §§ 11473 and 11473.5) were similar to their predecessor statutes in effect at the time of Backus, except that the predecessor statutes (then Health & Saf. Code, §§ 11474 and 11474.5) required that the contraband be turned over to the Attorney General for destruction or disposition.

BOREN, Associate Justice.

LUCAS, P.J., and ASHBY, J., concur.