Opinion
C088534
04-22-2020
THE PEOPLE, Plaintiff and Appellant, v. CALVIN WILLIAM SMITH, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. STKCRFE20185584)
The People appeal from an order of the superior court denying their motion to reinstate a felony complaint under Penal Code section 871.5, subdivision (f). The People contend the magistrate erred in denying the prosecutor's request for judicial notice of a purported prior conviction which, they say, would have provided sufficient evidence to hold defendant Calvin William Smith to answer on a charge of felony indecent exposure with a prior conviction (§ 314, subd. 1). We disagree and affirm.
Undesignated statutory references are to the Penal Code.
I. BACKGROUND
On May 2, 2018, the San Joaquin County District Attorney filed a felony complaint charging defendant with one felony count of indecent exposure with a prior conviction under "[s]ection 314.1" (count 1) and one misdemeanor count of engaging in lewd conduct under section 647, subdivision (a) (count 2).
As we shall discuss, "section 314.1" does not appear in the Penal Code.
A preliminary hearing was held. The particulars of the evidence adduced at the preliminary hearing are immaterial to the issues raised in the present appeal. For our purposes, it suffices to say that defendant was said to have exposed himself to a female employee at an IHOP restaurant in Stockton and touched his clothed groin area in front of a customer at another restaurant, a Carl's Jr., across the street.
At the end of the preliminary hearing, the prosecutor asked the magistrate to take judicial notice of a purported prior conviction "in case ending 15332." The record before us does not disclose how, exactly, the prosecutor sought to establish the existence of the prior conviction. Nevertheless, we gather from colloquy between the magistrate and defense counsel that the prosecutor offered records showing that defendant had previously been charged with a violation of "section 314.1," and entered a plea of guilty to that nonexistent offense.
Defense counsel objected to the request for judicial notice, arguing the record showed only that defendant suffered a prior conviction under a statute that does not exist. A discussion ensued, in which the magistrate theorized that the purported prior conviction under section 314 may have been denominated a conviction under "section 314.1" to satisfy a quirk of the court's computer system. The magistrate, while recognizing the possibility of a computer glitch, denied the prosecution's request for judicial notice, stating "I'm not going to take judicial notice of the 314.1. It's a statute that doesn't exist. So I can't legally understand what it is. And I can't assume it's something it's not." The magistrate then held defendant to answer for misdemeanor violations of section 314 and 647, subdivision (a). Defendant immediately offered to plead guilty "to the sheet," and the magistrate accepted the plea over the prosecutor's objections.
According to the pertinent minute order, "After preliminary hearing, the court finds no probable cause to hold Defendant to answer on count(s) 1, as there is no statute. [¶] The Court finds cause to believe that as to count 1 the following section(s) have been violated: PC 314, a misdemeanor."
The prosecutor filed a motion to reinstate the complaint pursuant to section 871.5. The superior court denied the motion. This appeal timely followed.
II. DISCUSSION
The People contend the superior court erred in denying their motion to reinstate the felony indecent exposure charge under section 871.5. They argue the magistrate erred as a matter of law in denying the prosecutor's request for judicial notice of defendant's purported prior conviction. Had the request been granted, they contend, the prior conviction would have constituted sufficient evidence to hold defendant to answer for the charge of felony indecent exposure. We see no error. A. Standard of Review
When a magistrate dismisses an action, or a portion of an action, the prosecutor may seek review in the superior court and request reinstatement of the charges pursuant to section 871.5. (People v. Murillo (2015) 238 Cal.App.4th 1122, 1128.) "The prosecutor may seek reinstatement, however, only on the basis that the magistrate erred as a matter of law in dismissing the action or a portion thereof. [Citation.] The reinstatement motion is not an opportunity to relitigate the issues before the magistrate; rather, it is a means for the superior court to determine the legal propriety of the magistrate's dismissal." (Ibid.; see also People v. Shrier (2010) 190 Cal.App.4th 400, 409 [" 'Thus, . . . a motion brought by the prosecution under section 871.5 is not a relitigation of the [issues before the magistrate]. Instead, it is simply a means to have the superior court determine the legal propriety of the magistrate's dismissal of the complaint' "].)
The People may appeal from an order denying their motion to reinstate the complaint pursuant to section 1238, subdivision (a)(9). "On appeal, the reviewing court disregards the superior court's ruling and directly examines the magistrate's ruling to determine if the dismissal was erroneous as a matter of law. [Citation.] To the extent that the magistrate's decision rests upon factual findings, we draw all reasonable inferences in favor of the magistrate's ruling and do not substitute our views regarding the credibility of witnesses or the weight of the evidence. [Citation.] We review the magistrate's legal conclusions [de] novo, but are bound by the magistrate's factual findings that are supported by substantial evidence." (People v. Murillo, supra, 238 Cal.App.4th at p. 1128.)
Relying on People v. Nickerson (2005) 128 Cal.App.4th 33, 36 (Nickerson), defendant argues we lack jurisdiction to hear this appeal because the underlying offense was a misdemeanor and was therefore subject to the jurisdiction of the appellate department of the superior court. Nickerson—which did not involve section 871.5—is inapposite. Because this matter arises from an order denying a motion to reinstate the complaint under section 871.5, we have jurisdiction under section 1238, subdivision (a)(9). (See § 871.5, subd. (f) ["Pursuant to paragraph (9) of subdivision (a) of Section 1238 the people may take an appeal from the denial of the motion by the superior court to reinstate the complaint or a portion thereof"].)
Here, we are tasked with deciding whether the magistrate erred as a matter of law in ruling the evidence was insufficient to hold defendant to answer for indecent exposure with a prior conviction. (People v. Murillo, supra, 238 Cal.App.4th at p. 1128.) That question, as framed by the People, turns on whether the magistrate erred in denying the prosecutor's request for judicial notice. As we shall discuss, the People have failed to show that the denial of the request was error. B. Request for Judicial Notice
The prosecutor requested judicial notice of defendant's purported "prior conviction in case ending 15332." The ostensible purpose of the request was to support the allegation that defendant had a prior conviction for indecent exposure under section 314.
Section 314 provides as follows: "Every person who willfully and lewdly, either:
"1. Exposes his person, or the private parts thereof, in any public place, or in any place where there are present other persons to be offended or annoyed thereby; or,
"2. Procures, counsels, or assists any person so to expose himself or take part in any model artist exhibition, or to make any other exhibition of himself to public view, or the view of any number of persons, such as is offensive to decency, or is adapted to excite to vicious or lewd thoughts or acts, is guilty of a misdemeanor.
"Every person who violates subdivision 1 of this section after having entered, without consent, an inhabited dwelling house, or trailer coach as defined in Section 635 of the Vehicle Code, or the inhabited portion of any other building, is punishable by imprisonment in the state prison, or in the county jail not exceeding one year.
"Upon the second and each subsequent conviction under subdivision 1 of this section, or upon a first conviction under subdivision 1 of this section after a previous conviction under Section 288, every person so convicted is guilty of a felony, and is punishable by imprisonment in state prison."
The records before the magistrate, such as they were, established only that defendant had a prior conviction under "section 314.1." Section 314.1 does not appear in the Penal Code. Nevertheless, the People presuppose that records establishing the existence of a prior conviction under nonexistent section 314.1 would perforce establish the existence of a prior conviction under section 314, subdivision 1. We are not so sure. The question before us, which the People do not squarely address, is whether the prosecution provided the magistrate with sufficient information to allow him to take judicial notice of a purported prior conviction under section 314, not a purported prior conviction under nonexistent section 314.1.
Evidence Code section 452, subdivision (d) provides that a court "may" take judicial notice of records of any court of this state. The parties do not dispute that court records pertaining to a prior conviction under section 314—which have not been made part of the record on appeal—would be subject to judicial notice under Evidence Code section 452, subdivision (d).
The prosecutor did not specify the statutory basis for her request for judicial notice; however, the People's opening brief refers to Evidence Code section 452, subdivision (d). We assume the magistrate proceeded under that subdivision. The prosecutor did not ask that the magistrate take judicial notice of the idiosyncrasies of the court's computer system under Evidence Code section 452, subdivision (g) or (h), and we express no opinion as to the merits of such a request.
Evidence Code section 453 provides: "The trial court shall take judicial notice of any matter specified in Section 452 if a party requests it and: [¶] (a) Gives each adverse party sufficient notice of the request, through the pleadings or otherwise, to enable such adverse party to prepare to meet the request; and [¶] (b) Furnishes the court with sufficient information to enable it to take judicial notice of the matter." (Italics added.)
"The burden is on the party requesting judicial notice to supply the court with sufficient, reliable and trustworthy sources of information about the matter." (People v. Maxwell (1978) 78 Cal.App.3d 124, 130.) "We apply the abuse of discretion standard in reviewing a trial court's ruling denying a request for judicial notice (i.e., we affirm the ruling unless the information provided to the trial court was so persuasive that no reasonable judge would have denied the request for judicial notice." (CREED-21 v. City of San Diego (2015) 234 Cal.App.4th 488, 520.)
The magistrate appears to have been principally concerned with the second requirement for mandatory judicial notice under Evidence Code section 453: Whether he had been furnished with "sufficient information" to enable him to take judicial notice of the matter. (Evid. Code, § 453, subd. (b).) He implicitly found that records establishing the existence of a prior conviction under nonexistent section 314.1 were not sufficient to enable him to take judicial notice of defendant's purported prior conviction under section 314. We cannot say the magistrate abused his discretion in so finding.
As far as the record reveals, the magistrate was provided with court records showing that defendant had suffered a prior conviction under section 314.1, a statute that does not exist. The People argue that violations of section 314, subdivision 1 are commonly described as violations of section 314.1 and are required to be so described by the court's computer system. According to the People: "The superior court's system is unable [to] recognize a conviction for Penal Code section 314, 314(1) or 314(2). [Citation.] Inasmuch [sic], the People must plead these charges as '314.1' or '314.2,' or the court will not accept filing of the People's complaint." The People also assert that the charging language in the complaint from defendant's prior case was the same as the charging language in the present case, insofar as both charged defendant with violations of section 314.1.
These arguments, whatever their merits, are predicated on evidence and information that were not presented to the magistrate and cannot factor into our analysis now. (§ 871.5, subd. (c) ["The superior court shall hear and determine the motion on the basis of the record of the proceedings before the magistrate"]; see also People v. Shrier, supra, 190 Cal.App.4th at p. 410 [" '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' "].) The magistrate was not asked to take judicial notice of peculiarities of the court's computer system or similarities in the charging language used in the two complaints, and was not obliged to undertake an independent investigation into such matters. (People v. Maxwell, supra, 78 Cal.App.3d at p. 130.) Although the magistrate appears to have recognized the possibility that the court's computer system may have played some role in the description of defendant's prior conviction, the prosecutor presented no evidence to this effect, and the magistrate was ultimately unwilling to assume that a prior conviction under "section 314.1" was the same as a prior conviction under section 314. We cannot say the magistrate abused his discretion in implicitly finding that the prosecutor, having provided him with information establishing the existence e of one thing (a prior conviction under section 314.1) nevertheless failed to present information sufficient to establish the existence of another (a purported prior conviction under section 314). On the record before us, where the proffered records can be said to have established only that defendant had a prior conviction under section 314.1, the magistrate could reasonably conclude that he had not been presented with sufficient information to enable him to take judicial notice of a purported prior conviction under section 314, subdivision 1. The magistrate did not abuse his discretion in denying the prosecution's request for judicial notice.
We have previously rejected the People's request that we take judicial notice of a complaint and minute order from the case ending in 15332. These documents are not properly subject to judicial notice in this court as we cannot be certain they were among the records presented to the magistrate. --------
Having concluded the magistrate properly exercised his discretion in denying the request for judicial notice, we further conclude the evidence was insufficient as a matter of law to hold defendant to answer on a felony charge of indecent exposure with a prior conviction. (§ 314.) We therefore conclude the magistrate's ruling effectively dismissing the felony charge of indecent exposure with a prior conviction and holding defendant to answer only on a misdemeanor charge of indecent exposure without a prior conviction, was not error. It follows that the superior court properly denied the prosecution's motion to reinstate that portion of the complaint.
III. DISPOSITION
The order denying the motion to reinstate the complaint is affirmed.
/S/_________
RENNER, J. We concur: /S/_________
RAYE, P. J. /S/_________
BLEASE, J.