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Court of Appeal, First District, Division 4, California.

Michael FOOTE, Petitioner, v. SUPERIOR COURT, COUNTY OF SAN MATEO, Respondent; PEOPLE of the State of California, Real Party in Interest.

Civ. 42714.

Decided: April 05, 1978

Alex B. Reisman, Laurence J. Lichter, San Francisco, for petitioner. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., Gloria F. DeHart, Patrick G. Golden, Deputy Attys. Gen., San Francisco, for real party in interest.

Petitioner, Michael Foote, seeks a writ of prohibition to compel respondent Superior Court of San Mateo County to grant his motion to dismiss the information against him with respect to the special allegations under Penal Code sections 12022, subdivision (b) (personally armed), and 12022.71 (infliction of great bodily injury). He is charged with violation of Penal Code section 211 (robbery) and section 245 (assault with a deadly weapon).

Petitioner contends that: “The special allegation in the Information, pursuant to Penal Code section 12022b (12022(b)) must be set aside because there was no evidence at the preliminary hearing that petitioner personally used a deadly or dangerous weapon in the commission of the alleged robbery,” and that: “The special allegation in the Information pursuant to Penal Code section 12022.7 must be set aside because there was no evidence at the preliminary hearing that the petitioner personally inflicted great bodily injury in the commission of the alleged robbery.”


The threshold question presented is whether the petition for writ of prohibition is proper at this time. Petitioner made a motion pursuant to section 995 to set aside the information with respect to the special allegations. The motion was denied and this petition was filed. The Attorney General contends that the trial court properly denied the motion in that sections 12022, subdivision (b) and 12022.7 do not define offenses and as such, are not subject to a 995 motion. We agree with the Attorney General's contention.

The special allegations are not public offenses but penalty enhancements. (See People v. Najera (1972) 8 Cal.3d 504, 511, fn. 6, 105 Cal.Rptr. 345, 503 P.2d 1353.) As stated in People v. Soto (1977) 74 Cal.App.3d 267, 273, 141 Cal.Rptr. 343, 346: “Recent cases indicate that it is essential that the accused be given full notice of the charges against him and an opportunity at a preliminary hearing to determine whether there is evidence to support those charges. (Citations.)” At the preliminary hearing, the victim was cross-examined relative to the petitioner being personally armed and whether great bodily harm was inflicted. Section 995 provides that the information must be set aside by the court in which the defendant is arraigned if the defendant has been committed without reasonable or probable cause. However, a defendant could not be committed, following a preliminary hearing, for a violation of section 12022, subdivision (b), or section 12022.7; they are not public offenses. Thus section 995 has no application to a special allegation pursuant to these sections. As section 995 is not applicable, section 999a could not be applicable.2

However, in the present case a petition for a writ of prohibition can be filed on the ground that the trial court acted in excess of its jurisdiction.3 Prohibition can be used to restrain judicial action which is in excess of jurisdiction. (5 Witkin, California Procedure (2d ed. 1971) Extraordinary Writs, s 3, p. 3782.) The term “excess of jurisdiction” has been expanded to include a review, on petition for writ of prohibition, of an order which is merely error. (4 Witkin, California Procedure (2d ed. 1971) Proceedings Without Trial, s 157, p. 2813.) Thus the writ is before us at this time and the issue presented is whether the trial court erred in not setting aside the special allegations.


With regard to the special allegation under section 12022, subdivision (b) (personally armed), the Attorney General concedes as follows: “. . . we agree that section 12022(b) only applies to one who personally uses a deadly or dangerous weapon. We also agree that no evidence was presented at the preliminary hearing which indicated that defendant personally used the club in the attack.”

As stated in Greenberg v. Superior Court (1942) 19 Cal.2d 319, 121 P.2d 713, where there is some evidence to support the indictment, no inquiry will be made as to its sufficiency; but if there is no evidence to justify the charge the grand jury is acting in excess of its jurisdiction, and prohibition should issue to protect the defendant.

In Rogers v. Superior Court (1955) 46 Cal.2d 3, 7, 291 P.2d 929, this rule was extended to apply to information as well as indictments. In the present case, the record shows that there is no evidence that the petitioner personally used the club or used any deadly or dangerous weapon, thus the special allegation pursuant to section 12022, subdivision (b), must be stricken.


With regard to the special allegation, under section 12022.7, that section provides that: “Any person who, with the intent to inflict such injury, personally inflicts great bodily injury on any person other than an accomplice in the commission or attempted commission of a felony shall, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he has been convicted, be punished by an additional term of three years, unless infliction of great bodily injury is an element of the offense of which he is convicted.

“As used in this section, great bodily injury means a significant or substantial physical injury.

“This section shall not apply to murder, manslaughter, assault with a deadly weapon or assault by means of force likely to produce great bodily injury under Section 245. The additional term provided in this section shall not be imposed unless the fact of great bodily injury is charged in the accusatory pleading and admitted or found to be true by the trier of fact.”

In People v. Walker (1976) 18 Cal.3d 232, 133 Cal.Rptr. 520, 555 P.2d 306, the Supreme Court held that a defendant must personally use a firearm in the commission of a charged felony if he is to be subjected to the increased penalty provided by section 12022.5. Petitioner argues that the rule of statutory interpretation in Walker applies to section 12022.7 with equal force: personally means personally.

The Attorney General argues as follows: “We agree that defendant must personally inflict great bodily injury. However, unlike the use of a firearm or a dangerous weapon which by its very nature generally requires only one ‘user,’ we submit that one who is not only present but holds a victim while an assailant attempts to beat him is as personally involved in the infliction of great bodily injury as the one swinging the club. The fact that the victim was not hit at the precise moment defendant laid hands on him is a distinction without substance. Walton's ability to defend himself was obviously impaired by defendant's conduct. In fact, Walton had to push defendant away before getting out of the store. But for defendant's personal involvement, the victim may have been able to defend himself more effectively; or at least flee from defendant's crime partner.”

A question of fact is presented as to whether defendant's actions would constitute personally inflicting great bodily harm as distinguished from merely being present and participating in the robbery. A ground for setting aside an information is that the defendant was committed without reasonable or probable cause. Although the petitioner is not moving to set aside the information we see no reason why the standard of proof used in such a motion would not be equally applicable under the facts of this case.

As stated in Witkin, California Criminal Procedure (1963) Proceedings Before Trial, section 226, page 212: “Lack of reasonable or probable cause is, in brief, a lack of any competent substantial evidence to show the commission of a crime or the defendant's connection with it. And reasonable or probable cause exists ‘if there is sufficient proof to make it reasonable to believe that the defendant is guilty of the offense charged. . . . On a motion to set aside an information, the question of the guilt or innocence of the defendant is not before the court, nor does the issue concern the quantum of evidence necessary to sustain a judgment of conviction. The court is only to determine whether the magistrate, acting as a man of ordinary caution or prudence, could conscientiously entertain a reasonable suspicion that a public offense had been committed in which the defendant had participated.’ (Citations.)” The motion to set aside cannot be used to review the sufficiency of the evidence. “The fact that the evidence produced before the grand jury or magistrate may be insufficient, by itself, to sustain a conviction, does not mean that there was no reasonable cause to hold the defendant for trial, and it is therefore not a proper ground for issuance of the writ. (See Lorenson v. Superior Court (1950) 35 Cal.2d 49, 56, 216 P.2d 859; Curtin v. Superior Court (1948) 83 Cal.App.2d 461, 466, 189 P.2d 288 (‘while the evidence in our case would not . . . support a verdict of guilty . . . it is strong enough to constitute ”some evidence“ to support the charge’); Perry v. Superior Court (1962) 57 Cal.2d 276, 283, 19 Cal.Rptr. 1, 368 P.2d 529; De Mond v. Superior Court (1962) 57 Cal.2d 340, 345, 19 Cal.Rptr. 313, 368 P.2d 865.)” (Witkin, California Criminal Procedure, supra, pp. 219-220.)

In the present case the evidence shows that the defendant did hold the victim, that he blocked the victim's attempt to move away and that the defendant's involvement, to some extent, impaired the victim's ability to defend himself or at least escape. The fact that the victim was not struck at the precise moment he was being held or blocked raises a question of the sufficiency of the evidence. The evidence presented is strong enough to constitute “some evidence” to support the charge and, as stated above, the motion to set aside cannot be used to review the sufficiency of the evidence. The trial court properly refused to strike the section 12022.7 special allegation.

Let a writ of prohibition issue restraining further proceedings against petitioner pursuant to Penal Code section 12022, subdivision (b).

The writ is denied as to the special allegation pursuant to Penal Code section 12022.7, and the alternative writ as to this section is discharged.


1.  All statutory citations are to the Penal Code unless otherwise stated.

2.  Section 999a provides in part: “A petition for a writ of prohibition, predicated upon the ground . . . that the defendant had been committed on an information without reasonable or probable cause, must be filed in the appellate court within 15 days after a motion made under Section 995 of this code . . . .”

3.  The present writ was filed pursuant to section 999a. However, as the matter is now before us, we will proceed to dispose of the writ on its merits.

CALDECOTT, Presiding Justice.