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

PEOPLE of the State of California, Plaintiff and Appellant, v. Terry L. SLAUGHTER, Defendant and Respondent.

Cr. 22581.

Decided: October 01, 1982

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Criminal Division, William D. Stein, Asst. Atty. Gen., Ann K. Jensen and Linda Ludlow, Deputy Attys. Gen., San Francisco, for plaintiff and appellant. Quin Denver, Public Defender, Peter R. Sitlen, Deputy Public Defender, San Francisco, for defendant and respondent.


The People appeal from an order refusing to reinstate a complaint pursuant to Penal Code section 871.5.1  We conclude that the magistrate's dismissal pursuant to section 871 was erroneous as a matter of law and that therefore the superior court erred in denying the motion.   We reverse.


Defendant Terry Slaughter was charged by complaint filed in the Municipal Court for the Oakland-Piedmont Judicial District, County of Alameda, on August 13, 1980, with murder (§ 187) and with possession of a firearm by a convicted felon (§ 12021).   The complaint also alleged that he was armed with a firearm during commission of the murder (§ 12022, subd. (a)) and that he had suffered two prior felony convictions.

Preliminary hearing was held December 9, 1980, January 6, 1981, and January 12, 1981, at the conclusion of which the court (Judge J. Robert Friborg) ordered the murder count discharged but held defendant to answer for the violation of section 12021.

The district attorney filed an information in Alameda County Superior Court and moved that court to compel reinstatement of count one (the murder charge).

On February 2, 1981, defendant pled not guilty to the charge in the information and stood mute on the priors;  a denial was entered.

The superior court (Judge Martin N. Pulich) denied the motion to reinstate on March 13, 1981.   Appellant pled guilty to the remaining count and was placed on 1 year's probation on condition that he serve 12 months in jail, but with credit for time served, including good time/work time of 345 days.

The People appeal from the order denying the motion to reinstate the complaint.  (§§ 871.5, 1238, subd. (a)(9).)


The following evidence was adduced at the preliminary hearing.

Dr. Paul William Herrmann, a forensic pathologist, testified that the victim, Russell Bradstreet, died as a result of a bullet wound of the neck.   A single bullet entered the back of the neck, passed through the cervical vertebra, pulverized the spinal cord, came out the front of the vertebra, injured the hyoid bone on the right side of the neck, and came to rest near the carotid artery.   The caliber of the bullet was .22 to .32.   Because of the absence of powder or burns around the wound, Dr. Herrmann estimated that the gun was fired at the victim from more than 18 inches away if a handgun was used, or from more than 30 inches away if a rifle was used.

Richard Wagner, general manager of Richardson Security Company, testified that the victim had been employed as a uniformed guard by that company since June 1980.   The day before his death the victim had brought in a gun to have it recorded in his personnel file.   It was a .38, two-inch barrel, R and G, model 40, serial number R104307.

On the night of the shooting, July 21–22, 1980, the victim was assigned to the company's mobile patrol division security for the Alameda Contra Costa Transit District;  in particular, his assignment was 73rd and East 14th, awaiting a call from the district.

Sergeant Michael Sitterud of the Oakland Police Department homicide detail arrived at the crime scene at 5:15 a. m. on July 22, 1980.   He observed a Richardson Security Patrol vehicle parked in the service station at East 14th Street and 73rd Avenue.   The driver's door was open and the window down.   The victim's body was half in and half out of the driver's door, going out onto the pavement.   The passenger-side door was closed;  the window was up but shattered, with a bullet hole in it and the glass strewn outward from the vehicle.   Sitterud surmised that the bullet came from the direction of a cinder-block wall (which separated the service station from a house) north of the vehicle, and passed north to south through the vehicle and out the passenger-side window.

Sergeant Sitterud observed a radio hand microphone running from the radio set out onto the pavement by the body.   The radio was on, and the victim's gun and wallet were missing.

Sergeant Sitterud's investigation revealed that neither the house nor the service station had been burglarized.

A few weeks later, on Sunday, August 3, 1980, Officer David Dreyer of the California Highway Patrol was in the vicinity of Highway 101 at Carpinteria when he heard a radio report of a stolen 1968 blue Volkswagen, with California license plate VUY 080.   About 15 minutes later he observed a blue Volkswagen traveling in excess of the speed limit;  he pulled in behind it, clocked it at 70 miles per hour, and noticed it had the same license number as the reported stolen vehicle.

Dreyer pulled the car over, exited his vehicle, and confronted the driver, defendant herein, who was exiting his auto.   Dreyer ordered defendant to place his hands in the air;  at first he did not comply.   Ultimately he did, and Dreyer arrested him, placed him in the patrol car, and advised him of his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694), which he waived.   Defendant was crying and explained he was in a hurry to get to Los Angeles.

When Officer Mead arrived, Dreyer advised him that they would be impounding defendant's car.   While processing the vehicle on the highway, Mead found the loaded pistol of the victim, Russell Bradstreet.

Sergeant Sitterud went to Santa Barbara, where he interviewed defendant on August 4, 1980.   He first advised defendant of his Miranda rights, which defendant again waived.   A tape recording was made of the interview and was introduced into evidence and played at the preliminary examination.

We have listened to the tape of the interview, during which defendant stated the following facts.2  Defendant, who was from the Los Angeles area, was living in Oakland at the residence of Ed Forward and others.   Defendant and Forward did burglaries together.   They did not do robberies;  defendant never carried a gun, because he was a parolee.

On July 22, 1980, at about 3:00 or 3:30 a. m., defendant and Forward went to commit a burglary.   After they chose the house, Forward parked his car on 73rd Avenue, removed something from the trunk, and went along the side of the house.   Defendant, as usual, stayed in the car as a lookout.   He was busy watching the street and did not notice Forward's movements.

Defendant heard two or three gunshots from the vicinity of the house or the neighboring gas station.   He thought someone shot at Forward ‘or he shot.”   Forward ran back from the side of the house, threw something in the trunk, slammed it, got in the car, and sped off.   Forward appeared panicky.   Defendant asked him about the shots, but ‘he didn't want to discuss it at all.”

Later that day defendant learned from a news broadcast that a security guard had been shot to death and robbed.   Several days later Forward showed defendant a short-nosed special .38 caliber handgun and said that ‘the gun is very hot” and that ‘it came from a dead man.”

On or about August 2, 1980, Forward pointed a gun at defendant and demanded $10.   Later that same day he threatened defendant again.   Defendant was in fear for his life.   He took Forward's car and left Oakland.   When the car broke down in San Jose, defendant stole another car, into which he put his own belongings and some fur coats and the .38 handgun, which he had found in Forward's car.

Sitterud testified that his investigations corroborated what defendant had told him about other burglaries he and Forward had committed, in that a search of Forward's residence revealed guns and stolen articles which defendant had described.


After considering oral and written argument the municipal court judge stated:  ‘Well, I think any murder liability would be a vicarious liability as pointed out in [defense counsel's] memorandum, but even that is stretching too far.   I do not see where there should be a holding order on the [section] 187 charge.   However, the evidence does disclose a violation of count two, ․ ex-con with a pistol․  And accordingly there will be a holding order on the [section] 12021 charge.   The [section] 187 charge is ordered discharged.”

The superior court, after extensive oral and written argument, denied the People's motion to reinstate the murder charge.


The People contend that in denying the motion to reinstate, the superior court applied an incorrect standard of review, and that there was sufficient evidence presented at the preliminary hearing to hold defendant to answer on the murder charge.   We agree.


The legislative history of section 871.5 has been discussed extensively elsewhere and need not be fully reiterated here.   The court in Chism v. Superior Court (1981) 123 Cal.App.3d 1053, 1061, 176 Cal.Rptr. 909, stated it briefly as follows:  “Section 871.5 was added to the Penal Code, effective January 1, 1981, to provide for review by the superior court of dismissals of criminal actions by magistrates under certain circumstances specified in sections 859b, 861, 871, and 1385, as concurrently amended.   These 1980 amendments were intended to overcome the holding of the Supreme Court in People v. Peters (1978) 21 Cal.3d 749 [147 Cal.Rptr. 646, 581 P.2d 651] ․, which construed the former language of those sections as authorizing ‘courts” but not ‘magistrates” to dismiss actions.   Conferring to magistrates the authority to dismiss required enactment of a statute authorizing the prosecution to seek immediate superior court review of such dismissals [and] to have the complaint reinstated so that successive dismissals by magistrates will not bar refiling under concurrently amended Penal Code section 1387.”  (Fns. omitted;  see also Ramos v. Superior Court (1982) 32 Cal.3d 26, 30, 184 Cal.Rptr. 622, 648 P.2d 589;  People v. Encerti (1982) 130 Cal.App.3d 791, 797–798, 182 Cal.Rptr. 139;  People v. Salzman (1982) 131 Cal.App.3d 676, 682, 182 Cal.Rptr. 748.)

Section 871.5 provides in relevant part that when an action or a portion thereof is dismissed by a magistrate, the prosecution may move the superior court to compel the magistrate to reinstate the complaint or a portion thereof.  ‘The only ground for the motion shall be that, as a matter of law, the magistrate erroneously dismissed the action or a portion thereof.”   The superior court hears and determines the motion ‘on the basis of the record of the proceedings before the magistrate.”   Litigation of the motion to decision bars the prosecution from refiling the dismissed action or portion thereof.   If the superior court denies the motion to reinstate the complaint, the People may appeal;  if the motion is granted, defendant may seek review pursuant to sections 995 and 999a.

Standard of Review

There are very few published decisions construing the new legislation, and this appears to be the first case in which the question of the appropriate standard of review is squarely raised.3

We are persuaded by the People's argument that the proper standard for review under section 871.5 is that which applies in proceedings pursuant to section 995.   This follows from the purpose of the preliminary hearing and from the need for meaningful pretrial review of the magistrate's rulings as perceived by the Legislature and codified in the statutory scheme under consideration.

 The purpose of the preliminary hearing is to determine whether there is sufficient cause to hold defendant to answer and to weed out groundless or unsupported charges.  (Jennings v. Superior Court (1967) 66 Cal.2d 867, 880, 59 Cal.Rptr. 440, 428 P.2d 304;  Walker v. Superior Court (1980) 107 Cal.App.3d 884, 888–889, 166 Cal.Rptr. 209.)   If the magistrate finds that there is probable cause, the defendant may seek immediate review of that determination (§ 995);  if the magistrate finds that there is not, the People may seek review (§ 871.5).   The ultimate question in either case is ‘whether the evidence presented at the preliminary hearing is sufficient to bring the defendant to trial on the charges against him, ․”  (Ramos v. Superior Court, supra, 32 Cal.3d at p. 34, 184 Cal.Rptr. 622, 648 P.2d 589.)   This question is one of law as it applies to the evidence presented to the magistrate, and while it is the magistrate's function to weigh the evidence, resolve conflicts in it, and determine credibility of witnesses, it is the function of the reviewing court to decide this legal issue.  (Walker v. Superior Court, supra, 107 Cal.App.3d at p. 889, 166 Cal.Rptr. 209.)

 That the superior court is in a position of legal review in a section 871.5 proceeding is clearly stated on the face of the statute.   In ruling on the motion the superior court is limited to consideration of the record of the proceedings before the magistrate, and the only question before it is whether ‘as a matter of law, the magistrate erroneously dismissed the action or a portion thereof.”

Effect of Factual Findings

 Where, as here, the magistrate dismisses a charge, the prosecutor has three alternatives:  he may file a new complaint;  he may file an information under section 739 charging the dismissed offense;  or he may move under section 871.5.  (Ramos v. Superior Court, supra, 32 Cal.3d at p. 35, 184 Cal.Rptr. 622, 648 P.2d 589.)   If the magistrate makes factual findings which are fatal to the assertion that a particular offense has been committed, the prosecutor may file a new complaint in hopes of persuading another magistrate otherwise.  (People v. Uhlemann (1973) 9 Cal.3d 662, 669, 511 P.2d 609.)   However, if the People elect to proceed under section 739 or section 871.5, neither the superior court nor this court may ignore those findings.   (Jones v. Superior Court (1971) 4 Cal.3d 660, 666, 483 P.2d 1241.)

 The clearest example of such fatal factual findings is ‘when the magistrate expresses disbelief of a witness whose testimony is essential to the establishment of some element of the corpus delicti.”  (Pizano v. Superior Court (1978) 21 Cal.3d 128, 133, 145 Cal.Rptr. 524, 577 P.2d 659.)   ‘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 ․”  (People v. Farley (1971) 19 Cal.App.3d 215, 221, 96 Cal.Rptr. 478) or by motion under section 871.5.

Application of Above Principles

 The case at bench is one in which the magistrate did not make express factual findings fatal to the murder charge.   While his statement that ‘․ any murder liability would be a vicarious liability ․” implies at least a partial belief of defendant's version of the crime (i.e., that he did not shoot the victim himself), we view it as a statement of legal conclusion properly subject to review by a section 871.5 motion.   The superior court, upon that review, misread the magistrate's conclusion as a factual finding by which it was bound.   This error infected the proceedings, as it logically compelled the court to apply the ‘Jones rule” (Jones v. Superior Court, supra, 4 Cal.3d 660, 483 P.2d 1241) where it had no proper application.

Furthermore, the superior court applied the so-called ‘Toledo doctrine.”   (People v. Toledo (1948) 85 Cal.App.2d 577, 193 P.2d 953.)   This doctrine is no longer viable.  (People v. Ross (1979) 92 Cal.App.3d 391, 400, 154 Cal.Rptr. 783.)   In any event, it is not applicable to the facts of this case, since defendant's statement was not the only evidence connecting him to the crime;  at the time of his arrest he was in possession of a weapon taken from the murder victim.

 We conclude that the magistrate erred as a matter of law in finding lack of probable cause to hold defendant to answer for murder.   Defendant admitted that he conspired to commit burglary and accompanied Forward to the vicinity of the killing with the intention of committing that offense.   While the evidence adduced at the preliminary hearing was not sufficient to convict defendant of murder, the People were only required to raise a strong suspicion of his guilt.  (E.g. Rideout v. Superior Court (1967) 67 Cal.2d 471, 474, 432 P.2d 197.)   This they did.   At trial they may develop a case of murder against defendant on any one of several theories of accomplice liability.   (See Pizano v. Superior Court, supra, 21 Cal.3d at p. 135, 145 Cal.Rptr. 524, 577 P.2d 659.)

The order denying the motion to reinstate that portion of the complaint charging defendant with murder is reversed.


1.   All statutory citations are to the Penal Code.

2.   The statement of facts in the People's brief included a summary prepared by Sergeant Sitterud of defendant's taped statement to the police.   The sergeant included this summary in his request for a warrant to search defendant's crime partner's residence.   Since the summary was not in evidence before the magistrate, it may not properly be considered on appeal, and the defendant has moved to strike this portion of appellant's brief.   We deny the motion and elect simply to disregard this portion of the brief.  (Cal. Rules of Court, rule 18.)

3.   In People v. Salzman, supra, 131 Cal.App.3d 676, 684, 182 Cal.Rptr. 748, the court discussed the standard of review applicable when the superior court considers a section 871.5 motion after the magistrate dismissed a felony complaint following the granting of a motion pursuant to section 1538.5.   The court did not indicate whether the parties had raised the issue.

BARRY-DEAL, Associate Justice.

Scott, Acting P. J., and Feinberg, J., concur.