Opinion
A100807.
10-31-2003
THE PEOPLE, Plaintiff and Respondent, v. RONALD ANTHONY McCLURE, Defendant and Appellant.
Defendant contends that the trial court erred in denying his motion to dismiss pursuant to Penal Code section 995. He claims that the magistrate used a lower standard of proof than preponderance of the evidence when determining that venue in San Mateo County was proper. We conclude that there was no error and uphold the lower courts ruling.
All further unspecified code sections refer to the Penal Code.
BACKGROUND
At about 11:15 p.m. on December 28, 2001, Brisbane Police Officer Samuel Figueroa (Figueroa) spotted a vehicle moving directly toward him in the wrong lane. He activated his overhead emergency lights and siren to warn the driver. The oncoming vehicle came within inches of his patrol vehicle before Figueroa swerved out of the way. The car did not slow down or stop at the stop signs. Figueroa turned his car around and followed the speeding vehicle.
The vehicle that Figueroa was following eventually collided with a concrete barrier. Figueroa radioed the location of the accident to dispatch and stopped his patrol car. When approaching the car involved in the accident, Figueroa drew his handgun and ordered the driver to step out of the vehicle. The driver, who was defendant, initially refused to leave the car; he then exited the car. Defendant began yelling profanities and threatening Figueroas life. Figueroa used pepper spray on defendant and forced him to the ground. Police Officer Robert Guadyacan (Guadyacan) arrived as backup; he helped Figueroa to handcuff defendant, who was continuing to struggle. The officers placed defendant into the patrol car.
Defendant continued to struggle and was then transported to the Brisbane Police Station by Guadyacan. Defendant continued to be combative and defendant had to be restrained while fire department personnel rinsed out defendants eyes. At one point, defendant bit an officer on the thumb.
Police searched defendants car and discovered several opened and unopened containers of alcohol. A blood sample revealed that defendant had a blood alcohol level of .18 percent.
On April 26, 2002, the San Mateo County District Attorney filed an information charging defendant with count one, driving with wanton disregard for the safety of persons or property while intentionally evading a pursuing police officer (Veh. Code, § 2800.2); count two, assault using a car as a deadly weapon against a person he knew or should have known was a police officer performing his duties (§ 245, subd. (c)); count three, resisting by violence the efforts of police officers to perform their duties (§ 69); count four, driving under the influence of alcohol or drugs (Veh. Code, § 23152, subd. (a)); count five, driving a vehicle with a blood alcohol level of .08 percent or more (id., § 23152, subd. (b)); count six, using force against a police officer whom he knew or should have known to be performing his duties (§ 243, subd. (b)); and, count seven, delaying and obstructing police officers in the performance of their duties (§ 148, subd. (a)(1)). The information further alleged sentencing enhancements for two prior strike convictions (§ 667, subd. (a), 1170.12, subd. (c)(2)).
On April 30, 2002, at his arraignment, defendant pleaded not guilty as to all counts and denied the enhancement allegations. At this hearing, the magistrate heard testimony to determine whether San Mateo was the proper venue under section 782. Section 782 provides: "When a public offense is committed on the boundary of two or more jurisdictional territories, or within 500 yards thereof, the jurisdiction of such offense is in any competent court within either jurisdictional territory." It was undisputed that the entire incident involving defendant and the allegations in the information occurred in San Francisco County. However, the prosecution argued that venue was proper in San Mateo because the crimes occurred near the boundary of San Francisco and San Mateo Counties, satisfying the jurisdictional requirements of section 782.
At the arraignment, Figueroa testified that another officer measured the distance from the San Mateo County border to the intersection of Blanken and Tocoloma—where Figueroa first spotted defendants vehicle—using a map from the Brisbane Police Department. Figueroa testified that the distance was under a quarter of one mile and the court took judicial notice that one quarter of a mile is approximately 440 yards. An expert for the defense testified that she measured the distance from the county line to the intersection of Blanken and Wheeler as approximately 1557 feet, which was equal to about 519 yards. On cross-examination, the expert acknowledged that she had not measured the distance to the closest point on the county line because of buildings and other obstacles.
After hearing the evidence, the magistrate stated: "Let me just state based upon the evidence I have heard thus far, I am convinced it is within 500 yards, but there is certainly doubt. However, I have probable cause to believe that the offense did, in fact, occur within the 500 yards of the San Mateo County line although its very, very close, and [defense counsels expert] was quite frank, and she did not utilize the straight line. Apparently the police officer did, so Im going to tend to go with [the prosecutions witness], but Ill be interested in your comments concerning jurisdiction."
The magistrate then listened to argument by counsel regarding its jurisdiction under section 782. The court ruled: "Based upon the testimony of Sergeant Figueroa, the Court finds that the offenses alleged did, in fact, occur within 500 yards of the county line. . . ." The court then proceeded to make its findings on reasonable and probable cause regarding the offenses and bound defendant over for trial.
Defendant moved pursuant to section 995 to dismiss the entire information based on improper venue and to dismiss counts one and two on the ground that the prosecution had failed to demonstrate probable cause for holding him to answer on those counts. The trial court rejected the venue claim and the challenge to count one; the court granted defendants request to dismiss count two.
In ruling on the issue of venue and defendants argument that the People had failed to prove venue by a preponderance of the evidence, the trial court explained its reasons for rejecting this argument: "[W]hile the judge is, lets just say, vacillating a little bit when he makes the jurisdictional finding, . . ., he does say that he is convinced, which I do believe meets any standard for holding as to jurisdiction, and then when he also makes the final holding . . . where he says, [¶] `Based on the testimony of Sergeant Figueroa . . ., the Court finds the offenses alleged did in fact occur within 500 yards of the County line. [& para;] So, that is a jurisdictional statement. He is making that finding. [¶] And then he goes on to say, after making that jurisdictional finding, that there is reasonable and probable cause to believe that the offenses occurred, with the specific violations enumerated. [¶] So, clearly, the judge has separated out. He is not making the findings of probable cause in the same breath as the jurisdictional finding; hes making them separately, and I believe that any reasonable reviewer of this record would say that he made his jurisdictional finding based on at least the preponderance of the evidence standard, if not a more—if not a higher standard in that he stated that he was convinced that it was within the 500 yards. [¶] I would also add that he clearly balanced the evidence. Its not as if this judge, magistrate, ignored some evidence and paid attention to other. It looks like the judge did a very thorough job of hearing the evidence, of giving it the weight that the judge felt it was due, and coming to a conclusion that the weight of the peoples witness, Sergeant Figueroa . . ., outweighed the weight and the testimony of the other witness."
The prosecution filed an amended information on September 24, 2002, which did not include count two. The prosecution also moved to strike all of the previously charged enhancement allegations, with the exception of the section 1170.12, subdivision (c)(1) enhancement alleged as to count three. The court ordered a bifurcated trial of the prior conviction.
On September 30, 2002, a jury found defendant guilty on all counts except count one. Defendant admitted the strike enhancement allegation pursuant to section 1170.12, subdivision (c)(1).
On October 28, 2002, defendant filed a motion pursuant to section 17 to reduce count three, the section 69 violation, to a misdemeanor and to dismiss the strike enhancement pursuant to section 1385. On November 1, 2002, the court denied defendants motion and sentenced defendant to 32 months in state prison.
Defendant filed a timely notice of appeal.
DISCUSSION
The sole issue raised by this appeal is whether the trial court erred in denying defendants motion to dismiss the entire information pursuant to section 995. Defendant contends that the magistrate improperly used the probable cause standard when he determined that venue in San Mateo County was proper. Since the prosecution is required to establish venue under the heightened standard of preponderance of the evidence (see, e.g., People v. Hardacre (2001) 90 Cal.App.4th 1392, 1400), defendant argues that the use of the improper standard should have resulted in the dismissal of the information.
Section 995, subdivision (a)(2)(A) provides in relevant part that the information "shall be set aside by the court in which the defendant is arraigned, upon his or her motion" if, before the filing of the information, "the defendant had not been legally committed by a magistrate."
In a post conviction context, as we have here, "when an appellate court reviews the denial of a motion to dismiss under section 995, irregularities in the preliminary examination require reversal only if the defendant can show that the error resulted in an unfair trial or that he was otherwise prejudiced." (People v. Coleman (1988) 46 Cal.3d 749, 773.) In proceedings under section 995, it is the magistrate who is the finder of fact and the superior court sits merely as a reviewing court. The superior court must draw every legitimate inference in favor of the information, and cannot substitute its judgment as to the credibility or weight of the evidence for that of the magistrate. (People v. Hall (1971) 3 Cal.3d 992, 996.) The appellate court in effect disregards the ruling of the superior court and directly reviews the determination of the magistrate holding the defendant to answer. (E.g., People v. Maltz (1971) 14 Cal.App.3d 381, 389.)
Where there is some evidence to support the magistrates decision on proper venue at the preliminary hearing, neither the superior court nor the Court of Appeal may inquire into the sufficiency of the evidence. (E.g., People v. Tabucchi (1976) 64 Cal.App.3d 133, 141.) In the case before us, defendant does not argue that the evidence to support venue was insufficient. Rather, defendant argues that the magistrate used an improper standard when determining the question of venue and this improper standard should automatically result in a reversal. (See Sullivan v. Louisiana (1993) 508 U.S. 275.) Even if reversal is not automatic, he argues that the error could not be harmless under either Chapman v. California (1967) 386 U.S. 18 or People v. Watson (1956) 46 Cal.2d 818 given the magistrates own statement that "there [was] certainly doubt" as to whether the incident occurred within 500 yards of the border.
We need not address the issue of what type of harmless error standard we should use because we conclude there was no error. Defendants entire argument rests on the one statement by the magistrate—prior to the making of his final findings—that he had "probable cause to believe that the offense did, in fact, occur within the 500 yards of the San Mateo County line." However, this statement did not reflect the magistrates final conclusions and ruling.
It is already well settled that "when an appellate court reviews the denial of a motion to dismiss under section 995, irregularities in the preliminary examination require reversal only if the defendant can show that the error resulted in an unfair trial or that he was otherwise prejudiced." (People v. Coleman, supra, 46 Cal.3d at p. 773; see also People v. Hurtado (2002) 28 Cal.4th 1179, 1190; People v. Crittenden (1994) 9 Cal.4th 83, 136-137; People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529.) Venue is "`not jurisdictional in the fundamental sense." (People v. Simon (2001) 25 Cal.4th 1082, 1096.) In contrast to the situation before us, the United States Supreme Court in Sullivan v. Louisiana, supra, 508 U.S. at pages 278-280 was concerned with federal constitutional error, a constitutionally deficient reasonable doubt instruction, committed during a jury trial. Thus, unlike the case in Sullivan, an improper ruling regarding venue at the arraignment hearing does not result in automatic reversal.
After the magistrate listened to additional argument by counsel, the magistrate announced at the end of the hearing his rulings. When setting forth his ruling, he expressly applied the probable cause standard solely to the question of whether there was sufficient evidence to bind defendant over for trial. When making his ruling on venue, he stated, "I am convinced it is within 500 yards." The magistrate then added that he was finding that "the offenses alleged did, in fact, occur within 500 yards of the county line." Thus, at the critical juncture where the magistrate made his findings and rulings, the magistrate did not find that it was probable that venue was proper; the magistrate found that venue was in fact proper. Thus, the magistrate used, at a minimum, the preponderance of the evidence standard. Accordingly, we hold that the trial court did not err when it denied the motion to dismiss the information on the ground that the magistrate had used an incorrect standard when ruling on the issue of venue.
DISPOSITION
The judgment is affirmed.
We concur: Kline, P. J., Ruvolo, J.