PEOPLE v. EMERICK (1989)

The People appeal from an order setting aside an information charging respondent with exploding a destructive device.  (Pen.Code, §§ 995, 12303.3.)

The complaint upon which the information was based had been dismissed by the magistrate following the preliminary hearing on the grounds that the evidence was insufficient to hold the defendant to answer.   The People then moved to have the superior court order reinstatement of the complaint pursuant to Penal Code section 871.5.¹  The motion was granted.   Defendant's subsequent motion under section 995 was then granted by a superior court judge other than the one who had ordered the complaint reinstated.

The People contend that the evidence produced at the preliminary hearing was sufficient to hold defendant for trial on the basis of vicarious liability as a co-conspirator or an aider and abetter.

Viewing the evidence in accordance with the usual rules on appeal (People v. Slaughter (1984) 35 Cal.3d 629, 633, 636–640, 200 Cal.Rptr. 448, 677 P.2d 854), it was established that at about 1:15 a.m. on June 24, 1987, Christina Kass' automobile was destroyed by an explosive device.   Jeff Caputi, Andy Morris, Joe Weinmuller, J.J. Turner, Nicholas Tombros, and respondent were friends and had purchased firecrackers before the explosion.   During the evening of June 23, respondent and his friends, except for Caputi, met at Brandon Ricketts' house.   Respondent gave Ricketts the keys to a small truck and said “drive.”   Ricketts drove respondent and the others around the Chatsworth area.   Later that evening Caputi joined respondent and his friends after they told Caputi “we're gonna go ․ horseplay, goof off” in respondent's truck.

Turner possessed a large number of firecrackers, including two-inch long “M–80's,” and at least one four-inch “Mexican 100.”   He lit packs of firecrackers and threw them from the truck and blew up three or four mailboxes with M–80's.²

At about 1 a.m. on June 24, Turner stated “Let's go to Christina's house” and he “was going there to blow something up.” ³  Respondent and Turner discussed going to the Kass house and to “raise hell.” ⁴  Morris, Weinmuller, and Turner directed Ricketts to the Kass house by instructing Ricketts to turn at various intersections.   Ricketts also testified that “[e]veryone knew his [Turner's] intentions.   You know, he had fireworks and blown up mailboxes.   We already knew his [Turner's] intentions.”   Respondent was “sitting back with [Tombros] talking ․ sometimes [to Tombros].”

Once in front of the residence, Turner said “[t]hat's her car” and stated that he wanted “[t]o blow up her car.”   Turner jumped from the truck and placed a mailbox containing a lit “Mexican 100” in Kass' car.   He then jumped back into the truck and respondent and his friends fled.   An explosives expert testified that the damage to Kass' car was caused by the explosion of a “Mexican 100” inside a mailbox.   Respondent told police that the mailbox contained an M–80, but he did not know that a firecracker “would do that much damage.”

 The contention that the information was erroneously set aside is well-taken.   The court made no express factual findings and the evidence presented, at least for preliminary hearing purposes, was adequate.   Respondent purchased firecrackers, told Ricketts to drive and discussed the offense with his companions, or was present and participating while others planned the crime.   This provided a rational basis for concluding that appellant was guilty of the charged offense.  (People v. Slaughter, supra, 35 Cal.3d 629, 633, 636–640, 200 Cal.Rptr. 448, 677 P.2d 854).

That, of course, is exactly the conclusion reached by the judge who ordered the complaint to be reinstated.   Thus another reason for reversing the order granting defendant's motion under section 995 is that it constituted a review at the same level of the order reinstating the complaint.

 The proceedings authorized by section 871.5 is in essence the “flipside” of a motion under section 995.   It permits the People to obtain a review of a magistrate's dismissal of an action as a protection against the bar of section 1387 based on erroneous rulings by the magistrate at the preliminary hearing.⁵  On the other hand, section 995 permits a defendant to seek a similar review of the magistrate's decision holding defendant to answer.   In either case, however, that review is conducted by a court of a higher jurisdiction than the one who made the decision under review.

It is true that section 871.5, subdivision (f) provides that a defendant may seek review of an order of reinstatement granted thereunder by moving under section 995.  Section 995, subdivision (a)(2) provides two bases for setting aside an information:  that the defendant has not been legally committed (§ 995, subd. (a)(2)(A)) or that the defendant has been committed without reasonable or probable cause (§ 995, subd. (a)(2)(B)).

We do not read section 871.5, subdivision (f) as permitting a defendant to seek two separate rulings in the superior court on the same issue.

 If a magistrate dismisses a complaint on the grounds that the evidence is not sufficient to hold defendant for trial, a hearing on the People's motion to reinstate the complaint pursuant to section 871.5 serves the same purpose as a motion under section 995 in that the superior court reviews the magistrate's decision in light of the record of the lower court proceedings.   If the motion is denied, the People are barred from refiling the action.   If it is granted, the defendant is barred from seeking dismissal under section 995, subdivision (a)(2)(B) but would be entitled to seek review of any other grounds under section 995, subdivision (a)(2)(A).   It must be remembered that the superior court's determination to reinstate the complaint under section 871.5 is a holding that the magistrate erred as a matter of law in dismissing the complaint.  (People v. Slaughter, supra, 35 Cal.3d 629, 642, 200 Cal.Rptr. 448, 677 P.2d 854.)

 Conversely, if the magistrate's decision to dismiss was based on a ground other than the sufficiency of the evidence, then if the superior court orders reinstatement, the matter is returned to the magistrate who then may exercise his discretion on the sufficiency of the evidence.  (Chism v. Superior Court (1981) 123 Cal.App.3d 1053, 1060–1062, 176 Cal.Rptr. 909.)   If the magistrate on remand holds the defendant to answer, defendant can seek review of the sufficiency of the evidence under section 995, subdivision (a)(2)(B).   He would be barred, however, from attacking under section 995, subdivision (a)(2)(A), the previous determination of the superior court in reinstating the complaint.

 Here, both the judge who ordered the complaint reinstated and the judge who granted the motion under 995, subdivision (a)(2)(B) were reviewing the sufficiency of the evidence as a matter of law to hold the defendant to answer.   The granting of the motion under 995, subdivision (a)(2)(B) was in error and defendant should have been required to proceed under section 999a.

The order under review is reversed.

FOOTNOTES

1.   Penal Code section 871.5 reads in pertinent part:“(a) When an action is dismissed by a magistrate pursuant to Section 859b, 861, 871, 1008. 1381, 1381.5, 1385, 1387, or 1389, or a portion thereof is dismissed pursuant to those same sections which may not be charged by information under the provisions of Section 739, the prosecutor may make a motion in the superior court within 15 days to compel the magistrate to reinstate the complaint or a portion thereof and to reinstate the custodial status of the defendant under the same terms and conditions as when the defendant last appeared before the magistrate.“․“(c) The superior court shall hear and determine the motion on the basis of the record of the proceedings before the magistrate.   If the motion is litigated to decision by the prosecutor, the prosecution is prohibited from refiling the dismissed action, or portion thereof.”“․“(f) ․ If the motion to reinstate the complaint is granted, the defendant may seek review thereof only pursuant to Sections 995 and 999a․”All further references are to the Penal Code unless otherwise indicated.

2.   Turner threw most of the firecrackers, while Morris threw a few.   Caputi testified that Turner threw some firecrackers at a liquor or convenience store.

3.   Respondent and Tombros were three feet from Turner and the truck was about a mile from the Kass residence.

4.   Concerning conversation about “going to raise hell” at the Kass house, Caputi testified:  “Q But, this conversation as to doing this, who were the people that joined in this conversation?   A Um, J.J. knew her.   J.J. was talking to Stephen and—Q Stephen?   A Emerick.   Q About doing this?   A Yes.   Q And did Mr. Emerick say anything back to him about it?   A I don't recall.   Q But, they were engaged in a conversation?   A Yes, they were.   Q As to going there and with this intent in mind?   A Yes.   Well, basically everybody in the whole truck.”

5.   Section 1387 reads in pertinent part:  “An order terminating an action pursuant to this chapter, or Section 859b, 861, 871, or 995, is a bar to any other prosecution for the same offense if it is a felony ․ and the action has been previously terminated pursuant to this chapter, or Section 859b, 861, 871, or 995, ․”

COMPTON, Associate Justice.

ROTH, P.J., and FUKUTO, J., concur.