Opinion
C085738
10-01-2019
THE PEOPLE, Plaintiff and Appellant, v. BRYAN SCOTT DAWSON, Defendant and Respondent.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17CF03996) PUBLIC—REDACTED VERSION OF OPINION Redacts material from sealed record.
(Cal. Rules of Court, rules 8.45, 8.46(f)(1) and (f)(2).)
The trial court sealed many of the underlying records in this case, including police reports and criminal history. The sealed records were also filed under seal in this court. (Cal. Rules of Court, rule 8.46(b)(1).) We granted the parties' requests to file both redacted and unredacted versions of their briefs. We have concurrently filed both public (redacted) and sealed (unredacted) versions of this opinion. (Cal. Rules of Court, rule 8.46(f)(4), (g)(1) & (2).) We order the unredacted version of this opinion sealed.
The People appeal the trial court's order denying their motion to reinstate an enhancement previously dismissed by the trial court. (Pen. Code, § 1238, subd. (a).) The People contend the trial court erred in concluding prosecution of the enhancement was barred by the two-dismissal rule. We affirm the order.
Undesignated statutory references are to the Penal Code. --------
FACTUAL BACKGROUND
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PROCEDURAL BACKGROUND
As relevant to this appeal, the People filed a complaint charging defendant with vehicular manslaughter while intoxicated along with a hit-and-run enhancement (§ 191.5, subd. (a); Veh. Code, § 20001, subd. (c)). The parties submitted to a preliminary hearing based on police reports and transcripts. Defendant primarily argued as to the enhancement, that he was effectively unconscious as a result of his intoxication, and the People argued the evidence showed he was conscious and aware of the accident. There was no argument, legal or factual, that defendant was unconscious up to the drive-thru and then became conscious and fled by driving to the car wash.
The magistrate held defendant to answer on all charges, but not as to the enhancement, finding: "The Court's view of the evidence, taking in mind the argument of the district attorney based on the subsequent interview was that there's not evidence to believe that the defendant knew he was in an accident, albeit from voluntarily drinking, and the Court's assumption from all the evidence was that the unconscious state was most likely from the overconsumption of alcohol, akin to a blackout, but based on the defendant's subsequent behavior captured in videos and recordings and his demeanor, the 911 call, that the defendant did not know he was in an accident until he reached Carl's Jr., and likely after he had purchased food there, but the point at Carl's Jr., where the steam was coming from the hood of the car, catching the defendant's attention, and the condition of the front end of the car, as he had driven the car away from the accident, and while the cases do support, as [defense counsel] pointed out, that the voluntary intoxication can be considered on the knowledge element whether [defendant] knew he was in an accident, his conduct thereafter is in compliance with responding to the accident by calling 911; so the Court is not going to hold [defendant] to answer as to the enhancement."
The People then filed an information in superior court which included all the substantive offenses on which defendant had been held to answer, and also alleged the Vehicle Code enhancement on which the magistrate had not held defendant to answer. Defendant moved to set aside the information under section 995. The superior court granted the motion as to the enhancement and set aside the enhancement. In so doing, the superior court noted that in declining to hold defendant to answer on the enhancement, the magistrate had made a "rather clear factual finding." The superior court later granted the People's motion to dismiss the information.
The People then filed a second complaint, identical to the first, including the enhancement allegation. Defendant demurred to the complaint. The demurrer argued that prosecution was barred under the two-dismissal rule in section 1387. Defendant argued the two dismissals were after the preliminary hearing under section 871, and then the dismissal under section 995. Defendant argued the section 995 dismissal did not fall under the section 1387, subdivision (c)(3) exception, because the case was not properly recharged under section 739. That section allows the prosecution to add charges that the magistrate dismissed at the preliminary hearing when they are transactionally related to those the defendant was held to answer on and they were dismissed by legal, not factual, ruling. The People opposed the demurrer contending the magistrate's factual finding was not fatal to the enhancement, because the additional driving from the drive-thru to the car wash supported the enhancement. The magistrate sustained the demurrer as to the enhancement allegation. The People moved to reinstate that allegation under section 871.5. The superior court denied the motion.
DISCUSSION
The People contend the trial court erred in denying its motion to reinstate the hit-and-run enhancement. They contend the magistrate erred in sustaining the demurrer on the basis that the enhancement had been dismissed twice previously under section 1387, as under the exception in subdivision (c)(3) it had been dismissed only once.
" 'On appeal from an order denying a motion to reinstate a criminal complaint under section 871.5, we disregard the superior court's ruling and directly examine the magistrate's ruling to determine if the dismissal of the complaint was erroneous as a matter of law. To the extent the magistrate's decision rests upon factual findings, "[w]e, like the superior court, must draw every legitimate inference in favor of the magistrate's ruling and cannot substitute our judgment, on the credibility or weight of the evidence, for that of the magistrate." [Citation.]' [Citation.] 'We review the magistrate's legal conclusions de novo, but are bound by any factual findings the magistrate made if they are supported by substantial evidence.' [Citation.]" (People v. Shrier (2010) 190 Cal.App.4th 400, 409-410, italics omitted.) The magistrate's ruling at issue here is the ruling sustaining the demurrer. Based on the arguments presented in the trial court, it appears the ruling sustaining the demurrer rested on the conclusion that there had been two prior dismissals. So, we must determine whether there had previously been one or two dismissals of the hit-and-run enhancement.
"Section 1387 implements a series of related public policies. It curtails prosecutorial harassment by placing limits on the number of times charges may be refiled." (Burris v. Superior Court (2005) 34 Cal.4th 1012, 1018.) As relevant here, section 1387, subdivision (a) provides: "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 or if it is a misdemeanor charged together with a felony and the action has been previously terminated pursuant to this chapter, or Section 859b, 861, 871, or 995 . . . ." Section 1387, subdivision (c)(3) provides an exception to this rule, if: "The motion pursuant to Section 995 was granted after dismissal by the magistrate of the action pursuant to Section 871 and was recharged pursuant to Section 739." These rules also apply to enhancement allegations. (People v. Carreon (1997) 59 Cal.App.4th 804, 808-810.)
Here, the magistrate dismissed the enhancement under section 871, the People refiled the enhancement and the superior court dismissed it under section 995. As the parties agree, if the information was properly filed under section 739 there was only one dismissal. If it was not, there were two. Whether the information was properly filed under section 739 turns on whether the magistrate made a factual finding at the preliminary hearing that was fatal to refiling the enhancement. (Walker v. Superior Court (1980) 107 Cal.App.3d 884, 889.) "[I]f a magistrate made factual findings that are fatal to a determination of probable cause as to the dismissed charge, the charge cannot be deemed to be 'shown by the evidence to have been committed' and hence cannot be included in the information pursuant to section 739." (People v. Slaughter (1984) 35 Cal.3d 629, 652, fn. 18.) Further, "such factual findings by the magistrate need not be express, so long as their existence can clearly be implied from the record." (Ibid.)
The People argue the magistrate's factual finding was limited to finding defendant lacked the requisite knowledge that he had hit someone only until he arrived at the drive-thru and that this factual finding is not fatal as defendant continued to flee from the scene by continuing on to the car wash. We do not read the trial court's factual finding so narrowly.
The arguments made at the preliminary hearing related only to whether defendant was aware he had been in an accident. The magistrate explicitly relied on defendant's behavior at the car wash, his demeanor on the 911 call from the car wash, and defendant's interview after he was arrested in concluding defendant did not know he was in an accident when he left the scene. In so doing, the magistrate rejected the prosecution's argument that defendant was trying to evade detection and liability. The magistrate concluded defendant knew something was wrong with his car when he saw the steam coming from the hood but did not know he was in an accident until he saw the condition of the front end of his car. Defendant did not see the damage to the front of his car until he was at the car wash. The magistrate explicitly rejected the prosecution's view of the evidence and found there was not evidence defendant knew he was in an accident when he left the scene, and once he realized he had been in a collision, he complied with the law. Reading the magistrate's ruling in view of the evidence explicitly relied upon and the arguments of the parties, we conclude the magistrate's ruling was a factual finding that was fatal to a determination of probable cause on the enhancement. Accordingly, the enhancement was not properly included in the information under section 739, and the section 995 dismissal constituted a second dismissal. Because the enhancement had been dismissed twice, the magistrate properly sustained the demurrer.
DISPOSITION
The order denying the motion to reinstate the enhancement is affirmed.
/s/_________
BUTZ, J. We concur: /s/_________
BLEASE, Acting P. J. /s/_________
MURRAY, J.