BUTLER v. PEOPLE (1984)

OPINION

Petitioner Michael A. Butler seeks a peremptory writ of “prohibition” ¹ directing and compelling the Superior Court of Fresno County to set aside the denial of his Penal Code section 995 motion.   Petitioner also seeks an order precluding the court below from using or considering a certain transcript dated July 1, 1983.

On April 18, 1983, the Rochester Big & Tall Clothing store in Fresno was the victim of a burglary.   The window was smashed and seven suits were taken.   Petitioner and a codefendant were charged with having committed the burglary.   Their preliminary hearing was held before the Honorable John P. Zylka on May 4, 1983.

The store manager, Robert Mouradian, testified that after arriving at the store, a gentleman from the nearby Exxon station gave a description of the incident to the police.   Mr. Mouradian could not remember the exact description, but did remember that one of the policemen took down all the information.   A reading of the transcript reveals that it is unclear whether Mr. Mouradian overheard the man from Exxon giving a description of the car or the defendants or both.

Officer Darryl Green of the Fresno City Police Department testified that on the evening of April 18, 1983, while at the intersection of Olive and San Pablo, he overheard a broadcast of a “window smash” that had just occurred.   Green was asked if he received any other information regarding the window smashing and he responded, “Yes.”   When asked what that information was, codefendant's attorney interjected a hearsay objection.   Petitioner's attorney concurred, also claiming “bootstrapping,” specifically citing the case of People v. Harvey (1958) 156 Cal.App.2d 516, 319 P.2d 689.   The court ruled that Officer Green could testify as to the fact that he received a dispatch from his dispatcher and pursuant to that he took certain action, but ruled Officer Green could not testify as to what exactly the dispatcher said.   Officer Green then testified as to the subsequent apprehension, detention and arrest of petitioner, as well as the search for and seizure of the relevant evidence.

Petitioner and his codefendant objected to their temporary stop for investigation, the admission of their statements before and after Miranda warnings and the admission of the evidence found in the suspects' car and trunk via a consent search, all on the basis that there was lack of probable cause to stop them.   A motion was made to suppress all of the above evidence.   Judge Zylka denied the motion, finding that the officers had probable cause to stop and investigate.   He concluded the evidence was legally obtained and admissible.

An information was filed against petitioner on May 18, 1983.   He was charged with violating Penal Code 2 section 459 and was arraigned on May 25, 1983.

Petitioner and his codefendant filed a motion to set aside the information pursuant to section 995 and to suppress evidence pursuant to section 1538.5.   Petitioner stressed the issue that the source of the information given to the police was unidentified and this person did not testify at the preliminary hearing;  in addition, the intervening “informative links” between the informant and the officers were also not called to testify.   Thus, petitioner contended “no probable cause to arrest was established,” citing People v. Harvey, supra, 156 Cal.App.2d 516, 319 P.2d 689 and Ojeda v. Superior Court (1970) 12 Cal.App.3d 909, 91 Cal.Rptr. 145.

The hearing on the motion was held on June 24, 1983, the Honorable Mario Olmos presiding.   Counsel pointed out that Mr. Mouradian was unable to give the description given to the police by the man from Exxon.   Moreover, Mr. Mouradian did not indicate if the man from Exxon described both the car and the suspects.   Counsel noted there was no indication that the broadcast of the description was the same as that given by the man from Exxon.   The description of the suspects or the suspect vehicle or both was “all up in the air.”   Counsel for petitioner stated the magistrate had made an error in his understanding of the Harvey-Ojeda objection and the district attorney had not been astute enough to correct him on it.   The court determined that this was the type of error that would allow the superior court to remand the case back to the magistrate for a corrected ruling pursuant to section 995a, subdivision (b).

Judge Olmos noted the purpose of the “Harvey-Ojeda-Madden” rule is to prevent the manufacture of probable cause at the police station.   He stated there were certain factors in the present case indicating the police did not manufacture probable cause at the police station.   The judge found the errors made at the time of the preliminary hearing of petitioner lent themselves to a quick resolution through the provisions of section 995a, subdivision (b).   Furthermore, the court characterized those defects as being “minor.”

Accordingly, Judge Olmos remanded the proceedings back to Department 3 before Judge Zylka.   He ordered that a minute order be prepared;  however, a careful reading of the transcript of June 24, 1983, indicates that it was not clear what testimony was to be permitted to correct the Harvey-Ojeda error.   The June 24, 1983, minute order did not reflect which minor errors could be expeditiously cured or corrected as required by section 995a, subdivision (b)(1).

Judge Zylka received the minute order and declined on June 30, 1983, to take further testimony.   There is no record before us to indicate precisely what happened in Judge Zylka's courtroom on the remand.   The proceedings were not transcribed and the parties have been unable to supply this court with appropriate information on this issue.

On July 1, 1983, the matter came back on calendar for further hearings before Judge Olmos.   The parties informed Judge Olmos that Judge Zylka had declined to hear the matter.   The district attorney pointed out to Judge Olmos that all that was required was to clarify the minute order and return the matter to Judge Zylka.   Judge Olmos indicated that the remand was supposed to be for the express purpose of taking additional testimony—“the Exxon station manager or the officer or both.”   The district attorney pointed out that it was his understanding the dispatcher was also going to be called.

Judge Olmos concluded that the Harvey-Ojeda problem could be taken care of either through the testimony of the dispatcher or the reporting party (the Exxon station manager).  “The testimony could be taken by either one of them.   And this ․ will be remanded forthwith to Judge Zylka.”

Petitioner again objected that the original minute order did not contain the reasons for the remand as required pursuant to section 995a, subdivision (b).   Judge Olmos indicated he had earlier stressed the areas that needed to be corrected and pointed out that if this was not transcribed or forwarded in that manner, that was not, in fact, the order of the court.

Later in the day on July 1, 1983, further proceedings were heard before Judge Zylka.   Two of the witnesses were dispatchers who had not been subpoenaed for the original preliminary hearing.   Ruth Ann Teigen testified that she was the dispatcher who had received the call regarding the incident in question.   A man called up and indicated that there was a robbery that had just occurred.   The dispatcher asked for a suspect or a suspect vehicle and the man proceeded to tell her the information.   The caller did not identify himself and he indicated he was getting information from someone else, so the dispatcher asked to speak to the second person.   The second person identified himself as Mr. Roshi.   Mr. Roshi proceeded to provide the dispatcher with more information about the robbery.   Mr. Roshi described the suspects as “two negro males.”   He also described the suspect vehicle as a “brown Buick Electra 225.”   Ruth Ann Teigen then relayed the information into a computerized dispatching system where Lisa Gruszie, also a dispatcher, broadcast the information.

Miss Gruszie testified that, after receiving the information, she broadcast the information regarding the robbery, as well as the identification of the suspects (two negro males) and the identification of the suspect vehicle (brown Buick Electra 225).

Officer Green, who had previously testified, was allowed to testify again.   Judge Zylka indicated that the clarifying order asked that he take the additional testimony of the Exxon station manager or the dispatcher officer or both.   He pointed out that the remand order did not say anything about additional testimony from Officer Green.   The district attorney pointed out that it would make sense to have Officer Green testify because he received the information testified to by the dispatcher.   The district attorney stated that Judge Olmos had mentioned orally that “he'd request the Detective be recalled and these details brought out.”   Based upon the district attorney's oral representation, Judge Zylka permitted Officer Green to be recalled.³

Officer Green testified he received a dispatch on April 18, 1983, stating that a window smash had just occurred at Rochester Big & Tall, the suspect vehicle was a brown Buick Electra, and the suspects were two Negro males.   Officer Green then described how, after receiving the information, he saw the car that matched the description of petitioner.   He followed the suspects and requested a patrol unit to make a traffic stop of the vehicle.   The vehicle was stopped and the two individuals were arrested.   The details of the detention, interrogation, search and arrest of petitioner were not developed by Officer Green in the preliminary hearing conducted on July 1, 1983.   These details were brought out at the original preliminary hearing conducted on May 4, 1983.

The superior court, Judge Olmos presiding, received the transcript of the July 1 hearing on July 5.   At this time, further hearings were conducted on the section 995 motion.   Judge Olmos noted that if complete testimony by the witnesses had been permitted at the time of the original preliminary hearing, there would have been no real Harvey-Ojeda problem.   Furthermore, the judge concluded that the language of the statute did not indicate the remand proceedings had to be limited to witnesses who were called at the time of the original preliminary hearing.

Judge Olmos indicated that he had read the transcript of the July 1 hearing and ruled the contents of that hearing addressed the problems regarding probable cause.   Consequently, Judge Olmos denied the section 995 motion.

Jury trial was set for July 7, 1983;  however, this court ordered a stay pending its determination of the instant petition.

DISCUSSION

 I. Was the scope of Penal Code section 995a, subdivision (b), exceeded when Judge Olmos remanded the proceedings back to the magistrate to allow additional testimony on the Harvey-Ojeda issue?

 One of the major contentions in petitioner's sections 995 and 1538.5 motion was the fact that no probable cause could be ascribed to the police dispatch because the dispatcher or the unidentified citizen informant did not testify at the preliminary hearing.   The general proposition is that a police officer is entitled to rely on information which reaches him through official channels.   Nevertheless, it is now well established that “although an officer may make an arrest based on information received through ‘official channels,’ the prosecution is required to show that the officer who originally furnished the information had probable cause to believe that the suspect committed a felony.”  (People v. Madden (1970) 2 Cal.3d 1017, 1021, 88 Cal.Rptr. 171, 471 P.2d 971.)   To hold otherwise would permit the manufacture of reasonable grounds for arrest within a police department by one officer transmitting information purportedly known by him to another officer who did not know such information without establishing under oath how the information had in fact been obtained by the former officer.  (Ojeda v. Superior Court, supra, 12 Cal.App.3d 909, 916, 91 Cal.Rptr. 145.)   Thus, the person who originally received the information or the informer must testify.  (People v. Harvey, supra, 156 Cal.App.2d 516, 319 P.2d 689;  Ojeda, supra, 12 Cal.App.3d 909, 91 Cal.Rptr. 145.)

 In the instant case, the dispatcher who received the information and the informer who gave the information were not called to testify at the hearing held on May 4.   A witness, Mr. Mouradian, was not able to describe in detail what he overheard when the informer gave the information to the police.   Moreover, Officer Green was not permitted to testify as to what the dispatcher said over the broadcast.⁴  Recognizing this problem, the district attorney moved for further proceedings pursuant to section 995a, subdivision (b)(1), to clear up the probable cause issue.   This section provides as follows:

“Without setting aside the information, the court may, upon motion of the prosecuting attorney, order further proceedings to correct errors alleged by the defendant if the court finds that such errors are minor errors of omission, ambiguity, or technical defect which can be expeditiously cured or corrected without a rehearing of a substantial portion of the evidence.   The court may remand the cause to the committing magistrate for further proceedings, or if the parties and the court agree, the court may itself sit as a magistrate and conduct further proceedings.   When remanding the cause to the committing magistrate, the court shall state in its remand order which minor errors it finds could be expeditiously cured or corrected.”  (Emphasis added.)

In addition, subdivision (b)(2) of the same section provides that “Any further proceedings conducted pursuant to this subdivision may include the taking of testimony and shall be deemed to be a part of the preliminary examination.”   Furthermore, section 995a, subdivision (b)(3), provides that “The procedure specified in this subdivision may be utilized only once for each information filed.   Any further proceedings conducted pursuant to this subdivision shall not be deemed to extend the time within which a defendant must be brought to trial under Section 1382.”

Petitioner contends that allowing the district attorney to bring in witnesses not previously subpoenaed to add further testimony on the issue of probable cause is not clearing up “minor errors of omission, ambiguity, or technical defect” within the meaning of section 995a, subdivision (b)(1).

Real party in interest (RPI) contends that the omission of a proper basis for probable cause in the instant case was, indeed, “minor” pursuant to the statute.  “This was not a case of insufficient probable cause evidence, which would not be ‘minor’, but merely an omission of procedural foundation.”   RPI contends that the error in the instant case could be corrected “expeditiously” by merely providing the link (police dispatcher testimony) between the probable cause provider and the arresting officers.

In the instant case, the magistrate erred in not permitting Officer Green to testify regarding what information he heard over the radio.   Given this erroneous hearsay ruling, the magistrate erred in summarily denying the defense motions to suppress evidence on the ground that the evidence was a product of an illegal detention.   These rulings and the resulting lack of a clear, concise Harvey/Madden objection prevented the prosecution from an opportunity to cure the problem.

The question before us becomes, can these omissions, described above, be deemed to come within the curative procedures provided for in section 995a, subdivision (b)(1)?

Unfortunately, there is little published case authority on which we can currently rely in resolving this issue.   We hope the Legislature will soon clarify its intent by providing a better, more workable definition of “minor.”   Thus, we are left with the task of deciphering what the Legislature intended by the use of the word “minor” when it enacted the code section in question.

 The function of the magistrate at a preliminary examination is adjudicatory in the limited sense that the magistrate must give careful consideration to and exercise reasoned judgment upon the evidence and arguments presented and it must synthesize the evidence and applicable law to draw legally significant ultimate conclusions.  (Jennings v. Superior Court (1967) 66 Cal.2d 867, 880, 59 Cal.Rptr. 440, 428 P.2d 304.)

 Once the holding order is made or denied, however, it has been the law that the magistrate cannot in the same proceeding resume his or her adjudicatory function either sua sponte or upon direction of a higher court.   In Burnett v. Superior Court (1974) 12 Cal.3d 865, 117 Cal.Rptr. 556, 528 P.2d 372, the defendant was accused of robbery.   The evidence tendered at the preliminary examination to identify him as the perpetrator was weak and the superior court, instead of ruling on the defendant's motion to set aside the information, purported to remand the matter to the magistrate to take additional testimony.   The Supreme Court ordered the superior court to rule on the defendant's motion, concluding that a remand to the magistrate was authorized by sections 997 and 998 only after the granting of the motion to set aside the information and only “․ for the purpose of correcting a procedural irregularity or to correct an inadvertence which is clerical in nature.”   (Burnett, supra, at pp. 870–872, 117 Cal.Rptr. 556, 528 P.2d 372.)  “A different result follows ․ when the defect in a commitment is judicial in nature, that is, the result of a judicial act.   Such a defect cannot be cured by the resubmission of the cause to the magistrate․  [¶]  [A] judicial error ․ is beyond his power to correct.”  (Id., at p. 873, 117 Cal.Rptr. 556, 528 P.2d 372.)   The Supreme Court held that if the magistrate had erred in finding the identification evidence sufficient, the error was judicial in nature and, hence, “․ properly challenged on the motion ․ to set aside the information.”  (Ibid.)

In 1982, the Legislature considered Assembly Bill No. 2984 designed to broaden a superior court's power to remand a pending felony proceeding to the committing magistrate for correction of errors.   The original version omitted the language in present section 995a, subdivision (b)(1), that the errors alleged by the defendant must be “minor errors of omission, ambiguity, or technical defect.”   This language was added by a Senate amendment on August 2, 1982.   The analysis of amended Assembly Bill No. 2984 by the Senate Committee on Judiciary indicates that the bill in its amended form still was intended to permit the correction of judicial defects.   The example given in the analysis by the Senate Committee on Judiciary was the failure to prove a jurisdictional fact.   Thus, the Legislature contemplated a correction procedure broader than the Burnett court would have permitted.   The pivotal question is, how much broader?

At this point, the answer must lie in the statutory language itself.   A plain reading of the statute in question reveals that a three-part test exists for determining whether an error committed at the preliminary examination is “minor.”   First, the error must be one of “omission, ambiguity, or technical defect.”   Second, the error must be susceptible of being corrected “expeditiously.”   Third, the correction must not require “a rehearing of a substantial portion of the evidence.”

 The error in the instant case was one of simple “omission.”   The judge's hearsay ruling in effect omitted Officer Green's testimony regarding what he heard over the dispatch, and this erroneous ruling contributed to the fact that a proper Harvey/Madden objection was not made, in effect omitting the crucial testimony of the dispatchers.

In addition, permitting Officer Green to relay what he heard over the dispatch and calling the dispatcher to the stand to testify as to the information received and relayed was the type of error that could be corrected “expeditiously.”   This testimony was not particularly involved or lengthy.   It did not require a significant amount of cross-examination.   This brief testimony merely provided the link between the probable cause provider and the arresting officers.

Lastly, the correction in the instant case would not require a “rehearing of a substantial portion of the evidence.”   Here, Officer Green was recalled but his testimony was not a recounting of his prior testimony.   The two dispatchers testified briefly for the first time at the July 1 hearing.

Thus, we conclude that, under the totality of the circumstances, the error in the instant case was “minor” within the meaning of section 995a, subdivision (b)(1).   Hence, the scope of the statute was not exceeded when the cause was remanded back to the municipal court for further testimony.

 II. Was Penal Code section 995a, subdivision (b)(1), violated because the original remanding minute order did not state which minor errors Judge Olmos found could be expeditiously cured or corrected?

 Petitioner next contends that section 995a, subdivision (b)(1), was violated because the original remanding minute order did not state which errors Judge Olmos found could be expeditiously cured or corrected as required by the statute.

Section 995a, subdivision (b)(3), provides in pertinent part that the procedure “may be utilized only once for each information filed.”   Petitioner contends that making a second minute order was beyond the power of the court.   RPI contends that the second referral to Judge Zylka did not violate section 995a, subdivision (b)(3), because the section 995a procedure was only utilized once.   Petitioner contends that Judge Zylka received the original order, made his decision on the order and sent the matter back to the superior court on the record previously established.   Petitioner contends that it was not sent back to the superior court for clarification or subject to further hearings reserved by the magistrate.   However, petitioner supplies no authority whatsoever for this proposition.   Frankly, as stated above, there is nothing in the record to indicate exactly why Judge Zylka sent the matter back to Judge Olmos.   Indeed, it is just as likely that Judge Zylka sent the order back for clarification.   The burden is on petitioner to supply authority for his contentions.   He has failed to do so.

Clearly, the procedures permitted by section 995a, subdivision (b)(1), did not take place following the first remand order.   We believe petitioner's contention places a far more technical meaning to this section than the Legislature intended.   Thus, we hold section 995a, subdivision (b)(3), was not violated in the instant case.

 III. Did Judge Zylka exceed the scope of the second minute order by taking additional testimony from Officer Green and did this additional testimony deny petitioner his right to a continuous preliminary hearing pursuant to Penal Code section 861?

Lastly, petitioner contends that Judge Zylka exceeded the scope of the second remand order by taking additional testimony from Officer Green.   Petitioner's contention is contained in one paragraph without authority in the petition and two paragraphs without authority in the response to the order to show cause.

 It is true that the second remand order did not mention the testimony of Officer Green (although the transcript reveals at one point the judge did mention the “officer”).   During Officer Green's testimony on July 1, he was allowed to describe what came over the dispatch regarding the instant burglary.   He was not permitted to provide this information at the preliminary hearing held on May 4.   The district attorney was correct when he stated that the testimony of Officer Green would tie up the testimony of the two dispatchers who had just testified.   The dispatcher who received the information and the dispatcher who relayed the information over the broadcast testified at the July 1 hearing.   Then, Officer Green was allowed to testify as to what he heard, thus tying the information together.   This clearly complied with the intent of Judge Olmos, as Judge Olmos so stated.

We believe the testimony of Officer Green should not be stricken.   His testimony clearly went to the issue at hand—the Harvey-Ojeda problem.   He was not permitted by the court at the original preliminary hearing to describe what he heard over the dispatch.   It was the intent of Judge Olmos that the problem of the missing link in the dispatch be cleared up.   Consequently, we hold it was not an abuse of discretion for Judge Zylka to admit the testimony of Officer Green.

We conclude the trial court below did not err in permitting the remand to proceed and in denying petitioner's section 995 motion.

The writ is denied.

FOOTNOTES

1.   The relief prayed is really “mandate” relief.

FN2. Unless otherwise stated, all code sections refer to the Penal Code..  FN2. Unless otherwise stated, all code sections refer to the Penal Code.

3.   At the July 1 hearing before Judge Olmos, Judge Olmos first indicated that the remand order was for the express purpose of taking additional testimony from the Exxon station manager or the officer or both.   Later, when he clarified his order, he specifically stated the dispatcher or the reporting party (the Exxon station manager).   The July 1, 1983, minute order specifically stated that Judge Zylka was to take additional testimony of the witness-manager of the Exxon station or the dispatch officer assigned or both—regarding the description of the defendant or the vehicle by the witnesses.There is no specific reference in the transcripts that Judge Olmos requested Officer Green's testimony.   Possibly the district attorney was referring to Judge Olmos' reference to “the officer.”

4.   This was an erroneous ruling.   The officer should have been permitted to testify regarding the information which he received over the radio subject to a motion to strike if the Harvey/Madden rule were not satisfied after appropriate objection (see People v. Escollias (1968) 264 Cal.App.2d 16, 19, 70 Cal.Rptr. 65).   Had the original objection at the preliminary hearing been more artfully phrased (the objection centered on “hearsay”), the district attorney would probably have asked for a continuance to provide the dispatcher's testimony.

ZENOVICH, Associate Justice.

FRANSON, Acting P.J., and WOOLPERT, J., concur.