Opinion
C083256
07-17-2018
THE PEOPLE, Plaintiff and Appellant, v. ANGELO YABES et al., Defendants and Respondents.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CRF160499)
Charges were brought via complaint against defendant Angelo Yabes and three others arising out of four robberies. After the prosecution secured an indictment for charges arising out of three of the robberies, the prosecution asked to proceed to preliminary hearing on the charges arising from the fourth robbery. The trial court denied the request, dismissed the complaint in full and — noting the charges for the fourth robbery were superseded by the indictment and also had previously been dismissed — declared those charges "dead."
The People appeal, contending dismissing of the charges arising from the fourth robbery was error. We agree.
BACKGROUND
The original complaint was filed against Yabes and one other defendant alleging multiple counts arising from three robberies in 2015, occurring on February 9th, April 12th, and April 26th. The complaint was later dismissed on the prosecution's motion. The prosecution then filed a second complaint adding two more defendants and charges pertaining to a March 29th robbery. Both the second complaint and the original complaint included all the charges for the April 26th robbery (the fourth robbery).
Several months later, the prosecution obtained an indictment for the counts arising from the first three robberies. No evidence pertaining to the fourth robbery was presented to the grand jury.
The defendants then asked that the second complaint be dismissed now that the case was proceeding by indictment. The prosecutor responded that the complaint still included nonduplicate counts for the fourth robbery, which were on their second filing, so he would not seek their dismissal. The court allowed the prosecution to submit authority on proceeding by indictment while reserving charges in a complaint but expressed doubt and noted there might be Kellett issues.
Kellett v. Superior Court of Sacramento County (1966) 63 Cal.2d 822, 827 (Kellett).
At a later hearing, the prosecutor explained that while no cases were on point, he did not believe there was statutory authority for the court to dismiss counts that were not substantially based on the same subject matter as the other three robberies. The prosecutor agreed duplicate counts in the complaint could be dismissed, but he asked that the fourth robbery charges remain and a preliminary hearing be set for them.
The trial court denied the request, concluding the indictment superseded the complaint, and any charges not taken to the grand jury are dismissed as a matter of law. It added, "those charges are dead." It reasoned: "[O]nce you filed the Complaint, you can proceed by Indictment, if you wish, or you can proceed by preliminary hearing. But, I know of no authority that says you can do both." "[W]hen you went to the Grand Jury, you elected to pursue the charges under the [indictment] as an alternative to going to preliminary hearing, and you are not entitled to both in the same case, in my opinion." It added: "You chose not to pursue the fourth incident with the Grand Jury, and to me, it's analogous to you going to preliminary hearing on the Complaint and only presenting evidence of three of the four . . . incidents. [¶] So you didn't get a holding order on the fourth incident. That's how I analogize your elections with the Grand Jury."
DISCUSSION
The People appeal arguing the trial court erred in dismissing the fourth robbery charges in the second complaint after the prosecution obtained an indictment. The People alternatively contend the dismissal of the second complaint did not count as a dismissal under the two-dismissal rule. Because we agree with the People's first contention, we do not reach the second.
This court is aware of no preclusion of taking certain charges before a grand jury and others to a preliminary hearing. To the contrary, the prosecution has broad authority to seek an indictment after filing a complaint. (See People v. Carrington (2009) 47 Cal.4th 145, 181 ["After a complaint has been filed, the prosecution is not prohibited from seeking an indictment on the same charges, even prior to dismissal of the complaint"]; Mason v. Superior Court (2015) 242 Cal.App.4th 773, 780, 782 [prosecution could proceed by indictment after magistrate held the defendant to answer on only a lesser included offense].)
And while the record fails to illuminate why the prosecution did not present evidence of the fourth robbery to the grand jury, we detect no prosecutorial misconduct in failing to do so. Nor is there a violation of Penal Code section 1387, which "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.)
Undesignated statutory references are to the Penal Code. --------
Further, we see no error under Kellett, supra, 63 Cal.2d 822, which the trial court flagged as a possible issue. Kellett held that where the prosecution knows or should know that more than one offense arises from the same act or course of conduct, it must prosecute all such offenses in a single proceeding unless an exception applies. (Id. at p. 827.) But here the counts at issue arose from a separate course of conduct: the fourth robbery took place on a different day. Further, the prosecution never indicated it intended to prosecute the fourth robbery in a separate proceeding. Indeed, had defendants been held to answer for the fourth robbery charges, the information and indictment could have been ordered consolidated. (See § 954; People v. Newville (1963) 220 Cal.App.2d 267, 270 [court may consolidate an indictment and an information for trial].)
Accordingly, with nothing precluding the prosecution's actions here, the trial court erred in dismissing the second complaint in its entirety.
Defendants, nevertheless, cite People v. Schlosser (1978) 77 Cal.App.3d 1007 (Schlosser) and Berardi v. Superior Court (2008) 160 Cal.App.4th 210 (Berardi), to argue the trial court's dismissal was proper, and the prosecution may not maintain parallel criminal prosecutions after an indictment has superseded a complaint. Schlosser and Berardi are inapposite. Both involved a complaint that was dismissed after the prosecution obtained an indictment for identical charges. (Schlosser, at p. 1009; Berardi, at p. 215.) Neither involved taking only some counts to the grand jury.
Defendants further contend that section 1387 subdivision (c) gave the trial court implicit authority to dismiss the second complaint and declare the remaining counts barred by the two-dismissal rule. Subdivision (c) creates an exception to the two-dismissal rule: "An order terminating an action is not a bar to prosecution if a complaint is dismissed before the commencement of a preliminary hearing in favor of an indictment filed pursuant to Section 944 and the indictment is based upon the same subject matter as charged in the dismissed complaint, information, or indictment." (§ 1387, subd. (c), italics added.) Defendants reason that because the fourth robbery was not "based upon the same subject matter," a dismissal of the fourth robbery charges would not fall under the indictment exception to the two-dismissal rule.
Defendants read too much into the statute. Section 1387 subdivision (c) was added essentially as a codification of People v. Cossio (1977) 76 Cal.App.3d 369, 370 and Schlosser, supra, 77 Cal.App.3d 1007, which held the dismissal of an existing complaint after an indictment was obtained did not count towards the two-dismissal rule. (See Berardi, supra, 160 Cal.App.4th at p. 222 ["In 1984, the Legislature amended section 1387 to essentially codify the holdings in Cossio and Schlosser"].) Section 1387 does not authorize dismissal of nonduplicate charges where the prosecution takes other charges before the grand jury.
DISPOSITION
The order dismissing the second complaint is vacated as to the counts arising from the April 26, 2015, robbery (counts 12 through 15). The matter is remanded.
/s/_________
Blease, Acting P. J. We concur: /s/_________
Mauro, J. /s/_________
Hoch, J.