Opinion
F074599
12-04-2017
THE PEOPLE, Plaintiff and Respondent, v. ALEXANDER MCKINLEY, Defendant and Appellant.
Stephanie L. Gunther, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Jennifer Oleska, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. MF011939A)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. Thomas S. Clark, Judge. Stephanie L. Gunther, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Jennifer Oleska, Deputy Attorneys General, for Plaintiff and Respondent.
Before Gomes, Acting P.J., Franson, J. and Peña, J.
-ooOoo-
INTRODUCTION
Defendant Alexander McKinley contends the trial court abused its discretion when it granted the People's motion to amend the information. McKinley has forfeited any appellate challenge to the amended information, and in any event, there was no abuse of discretion. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
McKinley and his girlfriend, Sonya H., went over to the home of Sonya's family, even though McKinley was not allowed in the home. Sonya's sister, Sabrina, was at home. While they were at the home, Fernando A. returned home. Fernando demanded that McKinley leave immediately. Sonya, Sabrina, and McKinley headed outside; Sonya told McKinley to "get in the car."
McKinley began calling Fernando "foul names" and "kind of trying to provoke him to come closer." McKinley got into his car and pulled out a gun. He was pointing the gun "right at" Sabrina and Fernando. Sabrina thought McKinley was going to shoot Fernando, so she "jumped in front" of him. The gun went off and Sabrina told Fernando, "We need to call the cops."
On January 8, 2016, a complaint was filed charging McKinley in count 1 with discharging a firearm from a motor vehicle in violation of Penal Code section 26100, subdivision (c), and in counts 2 and 3 with assault with a firearm in violation of section 245, subdivision (a)(2). Counts 2 and 3 identified the weapon as a .40-caliber Smith & Wesson. The preliminary hearing was held on May 5, 2016. The information filed May 11, 2016, set forth the same charges as contained in the complaint, including the reference to a Smith & Wesson firearm.
References to code sections are to the Penal Code unless otherwise specified.
At the May 17, 2016, arraignment, McKinley received a copy of the information, waived reading of the information, and entered a plea of not guilty to all counts. At the July 1, 2016, readiness hearing, the July 11 trial date was vacated. On August 26, 2016, a trial date of September 6, 2016 was confirmed. The trial date subsequently was continued. On September 22, 2016, a bench warrant was issued when McKinley failed to appear for trial.
On Monday, September 26, 2016, the trial court granted the People's motion to amend the information to allege in counts 2 and 3 that McKinley violated section 245, subdivision (b). In seeking permission to file an amended information, the prosecutor informed the trial court that he had been assigned to the case the previous Thursday. Upon reading the preliminary hearing transcript, he "saw that, despite the charge being a 245(a)(2), the preliminary hearing transcript had the officer refer to the gun as a Glock, which indicated to me it was not a revolver, it was actually a semi-automatic." The prosecutor indicated he then looked at the police reports and photographs of the weapon and saw "[i]t was, indeed, a semiautomatic firearm."
The prosecutor indicated he immediately sent an e-mail to defense counsel indicating his intent to amend the information, prepared an amended information, and provided the amended information to defense counsel the previous Friday. The prosecutor asked to amend the information to conform to the evidence at the preliminary hearing, revising the charges to be violations of section 245, subdivision (b), instead of subdivision (a)(2).
Defense counsel objected to the motion to amend the information on the grounds the motion was "untimely" and "it was not proved up at the preliminary hearing whether or not this was a semiautomatic firearm." Defense counsel acknowledged the gun was referred to as a ".40 Glock" at the preliminary hearing, but claimed there was no testimony about how cartridges are expelled, no spent shell casings were found, and no photographs of the weapon were entered into evidence at the preliminary hearing.
Defense counsel argued that by seeking to amend the information "at this time" the People were "denying the defense a right to a 995 motion," which defense counsel claimed would have been granted because "it was not proved up." The defense also argued that the "exposure" increased, because a section 245, subdivision (a)(2) offense had a sentencing triad of "2-3-4, whereas, a 245(b) has a triad of 3-6-9." Defense counsel acknowledged that "[e]veryone knows a Glock is synonymous with a semiautomatic; however, the Court was not asked to take judicial notice in the transcript."
Both counsel and the trial court then turned their attention to the preliminary hearing transcript, with defense counsel pointing out that on page 9 of the transcript, the witness refers to the weapon as "a Glock .40-caliber handgun." The People pointed out that on page 13 of the preliminary hearing transcript, the witness states ammunition was found in the magazine, but no shell casing was recovered. The People stated "that's actually in the statute the way a semiautomatic works. It ejects the shell casing. In a revolver, the casing would have still been in the cylinder. A revolver doesn't have a magazine."
The trial court took "notice that Glock manufactures only automatic firearms and does not manufacture revolvers," stating "that is a matter of common knowledge." The trial court also stated the testimony at the preliminary hearing that the weapon was a Glock, had a magazine, and the witness expected to find a spent shell casing "clearly underlines the fact that the weapon even if it wasn't a Glock was a semiautomatic."
The trial court further stated that "defendant has known all along that he is being charged with discharging a firearm and assaulting two alleged victims with a firearm." The trial court found defendant was not "prejudiced in any way" in terms of preparing for trial by the amendment. The trial court deemed the current hearing to be a "functional 995."
McKinley thereafter was arraigned on the amended information and pled not guilty to all counts. The trial court commented at the arraignment on the amended information that McKinley's plea to the amended information was "subject to and reserving all of your objections to the amendment."
The trial court proceeded to hear and rule on multiple motions in limine filed by the People and defendant. Late in the afternoon of September 26, 2016, jury voir dire began. Jury selection continued on September 27 with a panel selected and sworn late in the afternoon. Presentation of evidence began on September 29, 2016.
The jury was instructed on the offense of assault with a semiautomatic pistol. That instruction states in part, "A semiautomatic pistol extracts a fired cartridge and chambers a fresh cartridge with each single pull of the trigger." The jury also was instructed on the section 245, subdivision (a) offense as a lesser offense of the offense charged in counts 2 and 3, assault with a semiautomatic pistol.
The jury found McKinley not guilty of the count 1 offense and guilty of counts 2 and 3 as charged in the amended information. McKinley was sentenced to the middle term of six years for the count 2 conviction and a concurrent term of six years for the count 3 conviction.
McKinley filed his appeal on October 28, 2016.
DISCUSSION
McKinley contends the trial court abused its discretion in (1) granting the People's motion to amend the information because the evidence at the preliminary hearing did not support the amendment, and (2) taking judicial notice that a Glock is a semiautomatic weapon.
McKinley refers both to an abuse of discretion and error when challenging the trial court's ruling. A trial court's ruling on a motion to amend an information is reviewed for abuse of discretion. (People v. Miralrio (2008) 167 Cal.App.4th 448, 458.) McKinley acknowledges this is the correct standard of review in his opening brief.
I. Forfeiture
One basis for defense counsel's objection to the People's motion to amend the information was that the amendment was "untimely" and thereby deprived the defense of the ability to file a section 995 motion. The trial court deemed the hearing to be the "functional" equivalent of a hearing on a section 995 motion by defendant.
The purpose of a motion to set aside the accusatory pleading under section 995 is to review the sufficiency of the indictment or information based upon the record made at the preliminary hearing. (People v. Sherwin (2000) 82 Cal.App.4th 1404, 1411.) Failure to object to the information pursuant to section 995 forfeits any subsequent challenge to the sufficiency of the evidence presented at the preliminary hearing. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 990-991; In re Wells (1967) 67 Cal.2d 873, 875.)
A challenge to an order denying a section 995 motion is by way of a petition for writ of prohibition. The defendant must file a petition for writ of prohibition predicated on the ground the trial court abused its discretion in denying the section 995 motion. (§ 999a; Hudson v. Superior Court (2017) 7 Cal.App.5th 1165, 1170.) "Errors in the denial of a section 995 motion claiming insufficiency of the evidence are not jurisdictional in the fundamental sense." (People v. Lewis and Oliver, supra, 39 Cal.4th at pp. 990-991.)
McKinley did not pursue the denial of what was deemed a section 995 motion by filing a petition for a writ of prohibition. Consequently, any claim of error or abuse of discretion in denying his section 995 motion, or granting leave to file the amended information, is forfeited for purposes of appeal. (§ 999a; Hudson v. Superior Court, supra, 7 Cal.App.5th at p. 1170.)
Moreover, even if the issue were not forfeited for failure to file a petition for writ of prohibition, the issue is moot. McKinley proceeded to trial and the jury convicted him of two counts of violating section 245, subdivision (b). McKinley has not challenged the sufficiency of the evidence adduced at trial to support his convictions. The evidence at trial established conclusively that the gun recovered from McKinley's vehicle at the time of the shooting was a semiautomatic handgun. When a defendant does not file a petition for writ of prohibition, proceeds to trial and is convicted, his claim that insufficient evidence was adduced at the preliminary hearing to support the charges is moot. (People v. Crittendon (1994) 9 Cal.4th 83, 137 ["Where the evidence at trial amply supports the jury's finding, any question whether the evidence produced at the preliminary hearing supported the finding of probable cause is rendered moot"].)
II. No Abuse of Discretion
Regardless of the failure to file a petition for writ of prohibition, the trial court did not abuse its discretion in granting leave to file the amended information because sufficient evidence adduced at the preliminary hearing supported the amended information.
A. Factual Summary
The evidence adduced at the preliminary hearing included testimony from one of the responding officers, Steve Whiting. Whiting testified that when he responded to a report of a disturbance, he arrived at the location to find three people pointing toward a vehicle; the three stated the person in the vehicle, McKinley, had discharged a firearm. Whiting spoke with one of victims, Sabrina, who told him McKinley "retrieved a black, semiautomatic handgun" from his vehicle and discharged it. Another victim, Fernando, described the weapon to Whiting as "a black and silver .40 caliber handgun." Whiting also testified that ammunition was found in the magazine of the firearm, but no shell casing was recovered. Whiting testified the weapon retrieved from McKinley's vehicle was a "Glock .40 caliber handgun." He wrote a police report containing this and other information pertaining to the incident.
B. Analysis
Section 1009 states in relevant part:
"An ... information may be amended by the district attorney ... without leave of court at any time before the defendant pleads or a demurrer to the original pleading is sustained. The court in which an action is pending may order or permit an amendment of an ... information ... for any defect or insufficiency, at any stage of the proceedings, or if the defect in an ... information be one that cannot be remedied by amendment, may order ... a
new information to be filed. The defendant shall be required to plead to such amendment or amended pleading forthwith, or, at the time fixed for pleading, if the defendant has not yet pleaded and the trial or other proceeding shall continue as if the pleading had been originally filed as amended, unless the substantial rights of the defendant would be prejudiced thereby, in which event a reasonable postponement, not longer than the ends of justice require, may be granted. An indictment or accusation cannot be amended so as to change the offense charged, nor an information so as to charge an offense not shown by the evidence taken at the preliminary examination."
An information cannot be amended to charge an offense not shown by the evidence taken at the preliminary examination. Moreover, after arraignment on the original charges, the accusatory pleading can be amended only by order or permission of the court. The court has broad discretion to deny leave to amend and must do so if the amendment would prejudice the defendant's substantial rights. (People v. Birks (1998) 19 Cal.4th 108, 129.)
In determining whether charges in an amended information are adequately supported, a trial court "should uphold the information as to any offense charged in the information of which any reasonable construction of the evidence adduced at the preliminary hearing admits." (People v. Barba (2012) 211 Cal.App.4th 214, 227.) Although there should be some showing as to the existence of each element of the charged crime, such a showing may be made by means of circumstantial evidence supportive of reasonable inferences on the part of the trial court. (People v. Bolden (1996) 44 Cal.App.4th 707, 716.) Every legitimate inference that may be drawn from the evidence adduced at the preliminary hearing must be drawn in favor of the information. (Ibid.) The trial court's discretion, in granting a motion to amend, will not be disturbed on appeal in the absence of a showing of a clear abuse of discretion. (Ibid.)
We are not convinced that the trial court judicially noticing that Glock only manufactures semiautomatic weapons is a proper subject of judicial notice. (See People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 322-323.) Although, we note that cases referring to the Glock repeatedly refer to the weapon as a "semiautomatic" (see, e.g., People v. Lomax (2010) 49 Cal.4th 530, 542), and have referred to a .40-caliber Glock handgun as "semiautomatic" (People v. Williams (2013) 56 Cal.4th 165, 171). Even absent this judicially noticed information, the evidence adduced at the preliminary hearing supports an amendment to the information to charge counts 2 and 3 as section 245, subdivision (b) offenses.
There would be no question the evidence adduced at the preliminary hearing supported the amended information if the People had asked the obvious question at the preliminary hearing: whether the weapon recovered from McKinley was a semiautomatic handgun.
Whiting testifies that one of the victims, Sabrina, described the weapon as a semiautomatic handgun. Whiting also testified the weapon retrieved from McKinley's vehicle was a Glock .40-caliber handgun. He testified ammunition was found in the magazine, but no shell casings were found. Whiting testified he was familiar with firearms; he never indicated the weapon was other than a semiautomatic weapon as described by Sabrina.
The evidentiary showing required for a preliminary hearing is not substantial. To establish an offense at the preliminary hearing, the People need only show that there "'is some rational ground for assuming the possibility that an offense has been committed and that the accused is guilty of it. ... Every legitimate inference that may be drawn from the evidence must be drawn in favor of the information.'" (People v. Superior Court (Lujan) (1999) 73 Cal.App.4th 1123, 1127.)
A reasonable construction of the evidence adduced at the preliminary hearing and the inferences to be made therefrom leads us to conclude the evidence from that hearing was sufficient to support an amendment to the information charging McKinley with a violation of section 245, subdivision (b) because it provides "some rational ground" for assuming McKinley used a semiautomatic weapon in committing the offenses. (People v. Superior Court (Lujan), supra, 73 Cal.App.4th at p. 1127.) The testimony of a single witness, in this case Sabrina, is sufficient evidence. (People v. Young (2005) 34 Cal.4th 1149, 1181.)
McKinley was not prejudiced by the timing of the amendment to the information. A trial court may properly permit an amendment even at the conclusion of trial so long as a defendant's substantial rights are not prejudiced. (People v. Fernandez (2013) 216 Cal.App.4th 540, 554.) The section 245, subdivision (b) offense charged in the amended information was based upon the same evidence as the section 245, subdivision (a)(2) offense, the only difference being that the amended information more accurately reflected the handgun used by McKinley. The offense charged—assault with a deadly weapon pursuant to section 245—remained the same, only the subdivision changed. Crucial elements of the offense, namely that McKinley used a handgun and fired at Fernando and Sabrina, remained the same. Thus, the evidence involved in refuting or proving the charges was substantially the same.
Moreover, defense counsel was fully aware from the time of the preliminary hearing that the weapon used was a semiautomatic. Defense counsel acknowledged at the hearing to amend the information that the preliminary hearing testimony established McKinley used a .40-caliber Glock handgun and "everyone knows" a Glock is a semiautomatic weapon. Therefore, considering that amendments to an information may be made at any time prior to the conclusion of trial, defense counsel presumably would have been prepared for this eventuality. (People v. Fernandez, supra, 216 Cal.App.4th at p. 554.)
The trial court's decision to permit the amendment is not to be disturbed absent a clear abuse of discretion. (People v. Bolden, supra, 44 Cal.App.4th at p. 716.) No such abuse of discretion has been shown.
DISPOSITION
The judgment is affirmed.