CONWAY v. PEOPLE (1980)

In this proceeding we are asked by a criminal defendant to issue pretrial writs to prevent prosecution on certain charges and to order suppression of certain evidence. The two arguments of greatest concern are: (1) a challenge to validity of the decision in People v. Superior Court (Grilli) (1978) 84 Cal.App.3d 506, 148 Cal.Rptr. 740, preventing pretrial challenge to enhancements charged under Penal Code section 12022.7; (2) an argument that kidnapping has not been committed where transportation to the rape site was with the victim's consent and the return trip was to a spot selected by the victim. We have concluded that under the peculiar facts here there was sufficient evidence to support the kidnapping charge at the preliminary hearing. Disagreeing with Grilli, supra, however, we issue writ of prohibition to prevent the trial court from proceeding on the charged enhancement. We reject petitioner's other arguments concerning violation of Fourth Amendment rights and alleged insufficiency of the evidence of possession of a firearm.

Petitioner stands charged with kidnapping, robbery, rape, assault with a deadly weapon, and possession of a firearm by a felon. The information alleges use of a firearm and infliction of great bodily injury during commission of all but the last crime. The crimes were allegedly committed after the victim, while hitchhiking in Berkeley, accepted a ride from petitioner and another man. Though her destination was the Richmond—San Rafael Bridge, she agreed to a side trip to petitioner's San Pablo home to check on his children. At the preliminary hearing the victim testified that she was forcibly raped by both men during the side trip, that at one point petitioner pointed a small black pistol at her and threatened to use it, and that she was robbed of jewelry while at petitioner's residence. She testified that her hand was accidentally cut by a hunting knife during a struggle and that she was hit repeatedly on her face, head and eyes by petitioner's companion. When she screamed, petitioner put his hands around her throat to choke off the screams, and both men pushed a pillow in her face to stop her yelling. She was bound and gagged before commission of the rapes.

After the assaultive acts the men had a dispute about what to do with the victim. Eventually they asked her where she wanted to go and when she requested to be taken to the Berkeley Marina they took her there. She immediately contacted the Rape Crisis Center and the police arrived within a few minutes.

The Kidnapping Charge.

Simple kidnapping, as charged here, is covered by Penal Code section 207, which provides that “[e]very person who forcibly steals, takes, or arrests any person in this state, and carries him into another country, state, or county, or into another part of the same county” (emphasis added) is guilty of kidnapping. The section also provides for kidnapping by fraud, but an asportation by fraud alone constitutes a kidnapping only where there is unlawful transportation into the state for any purpose (Pen.Code, § 207; People v. Green (1980) 27 Cal.3d 1, 164 Cal.Rptr. 1, 609 P.2d 468; People v. Rhoden (1972) 6 Cal.3d 519, 526-527, 99 Cal.Rptr. 751, 492 P.2d 1143).

Petitioner contends that there was no evidence of force in the transportation between either Berkeley and San Pablo or San Pablo and Berkeley. The Attorney General does not contend that a kidnapping occurred on the trip to San Pablo, which he concedes was “voluntarily accepted” by the victim. He argues, however, that matters changed after arrival at petitioner's house. He recites the fact that the victim was prevented from leaving, was beaten, choked, bound, gagged, and raped. He argues that after these acts the victim felt she had no choice other than to accept the ride back to Berkeley.

The petition presents the interesting and difficult question of whether petitioner kidnapped the rape victim when he took her to the exact location she requested. The question divides profitably into two parts: (1) was the victim forced to accompany petitioner away from his home; and (2) was the victim forced to choose Berkeley as her destination? Clearly she was not forced to choose Berkeley as her destination. Thus the only pertinent questions are: (1) the factual question of whether she was forced to go somewhere with petitioner, and (2) the legal question of whether coercion to go somewhere else constitutes kidnapping, even when the victim is given the choice of where else to go.

We have found no authority addressing the legal question, but we have no difficulty concluding that kidnapping may take place if the victim is coerced to go somewhere with the defendant, even though given a choice of places. Clearly no kidnapping is committed when the purported victim is given unlimited choice, including the choice of not even to accompany the defendant. Where, however, the defendant uses his forcible control over the victim to deprive her of the choice to be immediately free of his company, the fact that the victim is given a choice of where to accompany the defendant does not convert the victim's choice into “consent” to the transportation. Thus, if the victim here was given only the choice of where to accompany petitioner, her choice to be transported to Berkeley did not constitute a “consent” vitiating the force of the kidnapping.

The preliminary hearing testimony of the victim reveals that petitioner and his companion discussed how the victim was to leave the house and “opted to take [her] back in the car [she] came in.” It is true that at one point the victim affirmed that she went willingly back to Berkeley because she “just wanted to leave.” But at another point she testified that she got into the car because she was told to do so. When asked by the prosecutor about walking down the street, she responded “That wasn't presented as an alternative.” She later explained that Berkeley was her choice of places to be taken.

The trial court's test on a motion to dismiss pursuant to Penal Code section 995 is whether the evidence at the preliminary hearing provides “some rational ground for assuming the possibility” that a kidnapping was committed. (Ghent v. Superior Court (1979) 90 Cal.App.3d 944, 955, 153 Cal.Rptr. 720.) This court, on review, may not substitute its judgment for that of the magistrate as to the weight of the evidence, and every legitimate inference to be drawn from it must be drawn in favor of the information (id.). The evidence at the preliminary hearing, while it may not satisfy a jury beyond a reasonable doubt, presents a rational ground for assuming that the victim was forced by petitioner to accompany him someplace, her choice being limited to the destination. Thus, the trial court did not err in failing to dismiss the kidnapping charge.

The Grilli Issue.

At the preliminary hearing the magistrate addressed the validity of the great bodily injury (Pen.Code, § 12022.7) enhancement to the rape charge, concluding that the rape itself could not constitute great bodily injury for purposes of enhancement and that the minor cut to the victim's hand did not qualify as great bodily injury. The information filed in superior court recharged the disapproved enhancement and petitioner's motion to dismiss pursuant to Penal Code section 995 asked that it be stricken. In denying the motion, the trial court noted that under the decision in People v. Caudillo (1978) 21 Cal.3d 562, 146 Cal.Rptr. 859, 580 P.2d 274, a charge of rape does not in and of itself support a finding of great bodily injury, but concluded that the motion to strike the allegation was precluded by the decision in People v. Superior Court, (Grilli), supra, 84 Cal.App.3d 506, 148 Cal.Rptr. 740. Petitioner argues that Grilli was wrongly decided.

In Grilli the defendant was charged with rape (two counts) and oral copulation, and was held to answer on all counts. Thereafter the People filed an information adding, inter alia, Penal Code section 12022.7 enhancement allegations as to all counts. In response to the defendant's section 995 motion, the trial court dismissed all the clauses alleging great bodily injury. The People sought and obtained writ of mandate.

The Grilli court's reasoning is reproduced in substantial part:

(5) The People contend that the fact of great bodily injury charged in an accusatory pleading pursuant to section 12022.7 may not be the subject of a motion to dismiss made pursuant to section 995. We agree. Although section 12022.7 has been the subject of but limited judicial interpretation (People v. Caudillo (1978) 21 Cal.3d 562, 580-589 [146 Cal.Rptr. 859, 580 P.2d 274]), it is clear from judicial analysis of analogous enhancement statutes (§§ 12022, 12022.5) that its provisions do not define a crime or offense but relate to the penalty to be imposed under certain circumstances. (In re Culbreth (1976) 17 Cal.3d 330, 333 [130 Cal.Rptr. 719, 551 P.2d 23]; People v. Strickland (1974) 11 Cal.3d 946, 961 [114 Cal.Rptr. 632, 523 P.2d 672]; In re Shull (1944) 23 Cal.2d 745, 749 [146 P.2d 417]; People v. Provencher (1973) 33 Cal.App.3d 546, 549-550 [108 Cal.Rptr. 792]; People v. Henderson (1972) 26 Cal.App.3d 232, 237, fn. 4 [102 Cal.Rptr. 670]; People v. Henry (1970) 14 Cal.App.3d 89, 92 [91 Cal.Rptr. 841]; see also People v. Najera (1972) 8 Cal.3d 504, 511, fn. 6 [105 Cal.Rptr. 345, 503 P.2d 1353].) That the provisions of section 12022.7 merely impose additional punishment for the felony or attempted felony committed under certain circumstances is apparent from the provision that the person “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.” (Italics added.)

Defendant in his motion to dismiss, challenged the inclusion in the information of only one offense, the charge of attempted murder. Defendant did not in his motion to dismiss challenge the correctness of the magistrate's order committing him for the offenses of rape and oral copulation or the inclusion in the information of the charge of false imprisonment; with respect to those counts, he challenged only the inclusion of the enhancement of punishment allegations. Numerous cases have held that an examination under section 995, paragraph 2d, subdivision 2, is limited to determining “if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it.” (Caughlin v. Superior Court (1971) 4 Cal.3d 461, 464 [93 Cal.Rptr. 587, 482 P.2d 211], italics added; People v. Hall, supra, 3 Cal.3d [992] at p. 996 [92 Cal.Rptr. 304, 479 P.2d 664]; Rideout v. Superior Court (1967) 67 Cal.2d 471, 474 [62 Cal.Rptr. 581, 432 P.2d 197].) Section 999 also envisions an offense, in that it provides that “An order to set aside an indictment or information, as provided in this chapter, is no bar to a future prosecution for the same offense.” We hold that since section 12022.7 does not define a separate offense, but merely imposes additional punishment for the felony or attempted felony committed, an allegation made pursuant to section 12022.7 may not be the subject of a challenge on the ground that the defendant had been committed without reasonable or probable cause.

(Id. at 512-513, 148 Cal.Rptr. 740.)

Had the Grilli court articulated a sound legal or practical basis for its conclusion, we would not hesitate to follow it. However, because we perceive serious flaws in the legal justification for the ruling we feel compelled to examine practical effects not mentioned by the Grilli court and to reexamine the legal principles pertinent to the issue.

The Grilli rationale is simple: Penal Code section 995 motions challenge only “offenses.” An enhancement is not an “offense.” Therefore the pretrial motion to dismiss may not reach enhancements. The primary defect to the Grilli decision is that its major premise is without sound legal support. Penal Code section 995 reads that “The indictment or information must be set aside” if the defendant has been indicted or committed “without reasonable or probable cause.” There is no mention of the word “offense” in section 995.

The Grilli court took the word “offense” from general textual statements made in three Supreme Court decisions involving drug charges with no enhancements. In each, the court was merely stating that an information would not be set aside if there was some rational ground for assuming the possibility that an “offense” was committed. (See Caughlin v. Superior Court (1971) 4 Cal.3d 461, 464, 93 Cal.Rptr. 587, 482 P.2d 211; People v. Hall (1971) 3 Cal.3d 992, 996, 92 Cal.Rptr. 304, 479 P.2d 664; Rideout v. Superior Court (1967) 67 Cal.2d 471, 474, 62 Cal.Rptr. 581, 432 P.2d 197.) None gave any suggestion of how the Supreme Court would rule on a motion to dismiss an allegation of acts not strictly considered an “offense.”

Grilli also noted use of the word “offense” in Penal Code section 999, which provides that “An order to set aside an indictment or information, as provided in this chapter, is no bar to a future prosecution for the same offense.” However, the mere use of the word “offense” in that section says very little about the function of a section 995 motion. Section 999 is meant only to explain that 995 dismissals are no bar to further prosecution, not to define what allegations may be challenged in pretrial proceedings.

If concentration upon the word “offense” is removed from the thinking about 995 motions, logic dictates that the motion should lie in connection with enhancement allegations. The wording of section 995 itself is open to interpretation. It merely states that the indictment or information “must be set aside” upon defense motion if it is found that the defendant has been indicted or committed “without reasonable or probable cause.” As early as 1917, in connection with a precursor to section 995 which provided that the “information must be set aside” if the defendant “had not been legally committed by a magistrate” (Stats. 1911, c. 256, § 1, pp. 435-436), the court of appeal concluded that a motion to dismiss for lack of evidence could be directed to only some of the counts charged in the information (People v. Hudson (1917) 35 Cal.App. 234, 169 P. 719. Accord, People v. Murray, (1927) 87 Cal.App. 145, 148, 261 P. 740). Where enhancements are separately charged it would seem to follow that they too, like separate counts, could be challenged separately.

Such a conclusion is implicit in Ghent v. Superior Court, supra, 90 Cal.App.3d 944, 153 Cal.Rptr. 720. There Division Four of this court distinguished Grilli, and approved a pretrial challenge to special circumstance allegations. The Ghent court ruled that special circumstance allegations were not mere enhancements of punishment because they might produce “total punishment,” noting as a further distinction the fact that special circumstance allegations affect eligibility for bail, selection of the jury, and various other features of subsequent proceedings. Though the Ghent court chose to distinguish Grilli, its opinion implicitly erodes the rationale of Grilli that a Penal Code section 995 motion may be directed only to “offenses” charged in the indictment or information.

The Penal Code presently contains a number of sections authorizing sentence enhancements (see, e. g., Pen.Code, §§ 12022. subds. (a) and (b), 12022.3, 12022.5, 12022.6, 12022.7, 12022.8). Findings concerning the truth of the allegations seeking these enhancements can add years to a defendant's commitment. Thus, these allegations may constitute powerful bargaining tools for the prosecutor. Evidence to support the allegations can often be presented easily during presentation of the prosecution's evidence on the basic offenses. Yet if it is not presented, and indeed if it does not exist, the defendant may remain under the threat of a long sentence during the entire plea negotiation process. At trial the defendant may be asked to defend against allegations the proof for which was withheld at the preliminary hearing. Even if the prosecution has presented all its evidence at the preliminary hearing, there is a threat that the jury will accept evidence concerning allegations that should have been “weeded out” by the magistrate or superior court judge in pretrial proceedings.

We have difficulty conceiving of countervailing benefits to the Grilli position. The most that can be said in Grilli's behalf is that it reduces the number of decisions required of magistrates and of superior court judges assigned to section 995 motions. In an occasional case, Grilli might benefit a prosecutor who found it difficult to assemble for the preliminary hearing evidence that a certain dollar amount was taken in an intricate financial crime (Pen.Code, § 12022.6). However, even then, a holding order could probably be obtained with evidence giving a preliminary indication of the scope of the loss. Similarly, a holding order on a great bodily injury enhancement, under Penal Code section 12022.7, ordinarily could be obtained without the necessity of expert medical testimony.

In summary, we find no legal or practical basis for the Grilli decision and decline to follow it.¹ Because the trial court here felt constrained by Grilli it did not rule on the merits of petitioner's motion to dismiss the great bodily injury enhancement to the rape charge. We therefore issue writ of prohibition restraining the trial court from conducting any further proceedings with respect to that enhancement other than to reconsider the motion to dismiss, decide it on the merits, and proceed in accordance with its decision.

The Fourth Amendment Claims.

Petitioner contends that during the preliminary examination he was improperly denied the right to make an oral motion to exclude evidence and that his Penal Code section 1538.5 motion in the superior court was improperly denied. We reject both contentions primarily because petitioner has at no stage of the proceedings identified any evidence he would like suppressed.

At the preliminary hearing the prosecution presented testimonial evidence by the victim and a lab report whose subject matter is not identified in the record. Officer Rodriguez was then called by the defense and questioned about his detention of petitioner on the day of the offenses. The prosecution objected that no motion to suppress evidence had been made. Defense counsel proposed an oral motion. When asked what evidence he wanted to suppress, defense counsel answered: “The original detention of Mr. Conway,” and later made clear that he was not objecting to evidence presented by the prosecution.

The defendant has a statutory right to move to suppress evidence at the preliminary hearing (Pen.Code, § 1538.5, subd. (f)). But the motion is to “suppress as evidence any tangible or intangible thing obtained as a result of a search or seizure.” (Pen.Code, § 1538.5, subd. (a).) The defendant is not entitled to litigate the validity or invalidity of a detention unless he seeks to suppress evidence seized as a result of the detention. Thus, the magistrate did not err in rejecting his request to make an oral motion to suppress.

At a Penal Code section 1538.5 hearing held in superior court, petitioner presented evidence concerning a warrantless arrest made at his home which he claims violated People v. Ramey (1976) 16 Cal.3d 263, 127 Cal.Rptr. 629, 545 P.2d 1333. He contends that the evidence shows that a ruse was used to entice him out of his house for arrest and that, notwithstanding Court of Appeal decisions to the contrary (People v. Tillery (1979) 99 Cal.App.3d 975, 160 Cal.Rptr. 650; People v. Porras (1979) 99 Cal.App.3d 874, 160 Cal.Rptr. 627) use of a ruse to avoid the strictures of Ramey is illegal.

Even were we to change our view on the legal question, petitioner would lose for two reasons. First, the evidence read most favorably to the prosecution indicates that petitioner stepped outside to talk to the police officer before the officer ever made the statement identified by petitioner as a “ruse.” Second, petitioner again failed to identify any evidence that was seized as a result of the allegedly unlawful arrest. In light of the fact that a consent search was made of petitioner's house and car some 13 days before the arrest, it seems unlikely that any evidence flowed from the arrest itself.

Sufficiency of the Evidence of Possession of a Firearm.

The evidence concerning a firearm consisted of the victim's testimony on direct, testimony about what guns were found in the search of the home, and the victim's later testimony on identification of the gun. On direct, the victim testified that she was threatened with a gun “about as big as my hand and it was black and had a small barrel.” Later, on cross—examination, she was asked more questions about the gun, including whether she could see the gun closely enough to see if it was a real gun or a fake. She answered that she could not.

During a consensual search of the residence, Officer Rodriguez found three guns, all of which were replicas, not functioning weapons. One was found in a dresser drawer in a bedroom, while the other two were hanging on the wall in the bedroom. There was an empty bracket similar to those supporting the guns. No gun was found in a search of petitioner's car or in a search of the area outside the house.

The victim was shown the three replica guns found by Officer Rodriguez, and responded that she could not say whether any was the gun used because she saw only the barrel of the gun extending beyond his hand. However, to a later question she responded that the gun she saw “didn't look like either [sic] of those guns.” She testified on redirect that the gun petitioner had used “seemed smaller” than the one found in the drawer.

The magistrate refused to make a holding order on the charge of possession of a firearm by a felon, concluding that the evidence did not present a reasonable suspicion that petitioner was armed with a real weapon. Petitioner contends that this was a factual finding which was binding upon the superior court and that when the prosecution added the Penal Code section 12021 charge to the information the trial court should have stricken it.

“An information charging an offense not named in the commitment order will not be upheld unless the evidence taken by the magistrate shows that the offense was committed and that it arose out of the transaction which was the basis for commitment on a related offense (Jones v. Superior Court (1971) 4 Cal.3d 660, 664-665 [94 Cal.Rptr. 289, 483 P.2d 1241]). [¶] This rule is subject to the qualification that an offense not named in the commitment order may not be added to the information if the magistrate made factual findings which are fatal to the asserted conclusion that the offense was committed ․ When, however, the magistrate either expressly or impliedly accepts the evidence and simply reaches the ultimate legal conclusion that it does not provide probable cause to believe the offense was committed, such conclusion is open to challenge by adding the offense to the information. Addition of the offense is, of course, subject to attack in the superior court under Penal Code section 995, to review by pretrial writ, and finally, to appellate review from the judgment of conviction [citations].” (Pizano v. Superior Court (1978) 21 Cal.3d 128, 133, 145 Cal.Rptr. 524, 577 P.2d 659, emphasis in original.) Furthermore, if the magistrate purports to make factual findings, but they are ambiguous or irretrievably mingled with conclusions of law, they are not to be accorded deference by the trial or appellate courts. (See People v. Superior Court (Gibson) (1980) 101 Cal.App.3d 551, 554, 161 Cal.Rptr. 923.)

The magistrate here made no factual finding concerning what gun was actually used, but instead drew inferences from the evidence and reached the legal conclusion that the charge lacked sufficient support. Under these circumstances, the trial court was permitted to make its independent determination on the charge.

Finally, we must review the trial court's implied conclusion that there was “some rational ground for assuming the possibility” that petitioner was armed with a real weapon. (Ghent, supra, 90 Cal.App.3d at p. 955, 153 Cal.Rptr. 720.) We find sufficient evidence in the record to support that conclusion. When petitioner pointed the pistol at the victim he said he would not hesitate to use it. Of course, he could have been bluffing. However, when that evidence is added to the fact that the victim testified that none of the replicas looked like the pistol she saw and that the one petitioner held on her seemed smaller than the one found in the drawer, the result is a reasonable inference that petitioner threatened the victim with a real pistol. The trial court did not err in refusing to dismiss count five.

In summary, we have concluded that the trial court's rulings were correct in all respects except in its failure to rule on the merits of petitioner's motion to dismiss the great bodily injury enhancement to the rape charge. Let peremptory writ of prohibition issue restraining the trial court from conducting any further proceedings with respect to that enhancement other than to reconsider the motion to dismiss, decide it on the merits, and proceed in accordance with its decision. In all other respects, the petition is denied.

FOOTNOTES

1.  We wish to make clear that our ruling has no application to allegations of prior felony convictions. The statutes covering prior convictions provide that at any time while an information or indictment is pending priors may be added “upon order of the court” (Pen.Code § 969a), and that a prior may be added even after the magistrate has taken a guilty plea pursuant to Penal Code section 859a (Pen.Code, § 969 1/212). The clear implication of these sections is that the defendant can be tried on a prior without evidence of same having been presented at the preliminary hearing or before the grand jury. No similar statutes permit late charging or enhancements, which under our ruling must be supported by evidence presented at the preliminary hearing.

WHITE, Presiding Justice.

FEINBERG, and DOSSEE*, JJ., concur.Hearing denied; CLARK, J., dissenting.