P. v. Superior Court

Filed 10/20/06 P. v. Superior Court CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Real party in interest Michael James Bloom and codefendants Efrain Barrios and Pablo Alviso were charged by information with various crimes including conspiracy to commit burglary and robbery, attempted murder with premeditation and deliberation, robbery, residential burglary, street terrorism, attempted robbery, and active participation in a criminal street gang. Their trial is scheduled to begin November 9, 2006.

Bloom’s codefendants brought various motions to dismiss, pursuant to Penal Code section 995, including motions to dismiss the attempted murder count. Bloom initially only filed a motion to dismiss the street terrorism charge and criminal street gang enhancements, but at oral argument joined in his codefendants “respective arguments.” Those arguments included claims that there was insufficient evidence to support the charge of attempted murder with premeditation.[1] In ruling on the 995 motions, the superior court dismissed the attempted murder with premeditation and deliberation charge with respect to Bloom only. The court’s order read in pertinent part: “The People’s citation to the California Supreme Court cases of P. v. Beeman (1984) 35 Cal.3d 547, 560 and P. v. Croy (1985) 41 Cal.3d., 12 fn5 state the essential rule: A defendant’s ‘. . . knowledge that an act which is criminal was intended, and his action taken and his action taken with the intent that the act be encouraged or facilitated, are sufficient to impose liability on him for any reasonably foreseeable offense committed as a consequence by the perpetrator.’ This case is not being prosecuted on a felony murder theory because, of course, the victim survived here. It is this court’s determination that, as a matter of law, an attempted first degree murder was not reasonabl[y] foreseeable by Mr. Bloom, and he is therefore discharged on that count.” Although the People timely appealed, they seek a writ because, even if the appeal is successful, trial of this matter is to commence before the appeal can be decided. To avoid multiple trials, the issuance of a writ is appropriate. (See People v. Superior Court (Caudle) (1990) 221 Cal.App.3d 1190, 1193, fn. 2 [the People’s request for pretrial writ review of a section 995 ruling is justified to avoid multiple trials involving the same facts].)

The People filed the petition for a writ of mandate on September 19, 2006; on September 21, 2006, this court requested informal briefing and gave notice that it “may choose to act by issuing a peremptory writ in the first instance.” For the following reasons, we now issue a peremptory writ of mandate.

Testimony in the preliminary hearing showed that Bloom and his codefendants believed that the victims, Daryl Crunk and his daughter Katie, had a safe in their home containing a large sum of money. Accordingly, they decided to rob the occupants on February 24, 2005. When Crunk answered a knock at the door, three men dressed in black and wearing ski masks forced their way into his home. Two of the men, one of whom had a gun, demanded that Crunk “open the safe.” The third, later identified as Bloom, was armed and ran upstairs, found Katie, made her stop talking on the telephone, took it away from her and ordered her to hide in the shower. He assured her that they would not hurt her father. In the meantime, Crunk was resisting the intruders. As he tried to open the front door to escape, he was shot twice, and sustained penetrating injuries to his lung and liver, a bruised pancreas, and nine intestinal perforations. He was hospitalized for seven to eight weeks, and survived.

The question before us is whether on these facts, the superior court properly dismissed the attempted murder charge against Bloom because, as a matter of law, the attempted first degree murder was not reasonably foreseeable.

To prevail on a section 995 motion to dismiss, a defendant must show that he was held over “ ‘without reasonable or probable cause’ to believe that he or she was guilty of [the offense].” (People v. Mower (2002) 28 Cal.4th 457, 473.) Our Supreme Court has explained that the probable cause standard may be met even where there is “ ‘ “some room for doubt” ‘ “ that the defendant is guilty. (Ibid.) One court has described the showing of probable cause necessary to hold a defendant over as “exceedingly low.” (Salazar v. Superior Court (2000) 83 Cal.App.4th 840, 846.) In ruling on a section 995 motion, the magistrate may weigh the evidence, resolve conflicts and consider some witnesses more believable than others, and a reviewing court may not “substitute its judgment as to the weight of the evidence for that of the committing magistrate.” (People v. Hall (1971) 3 Cal.3d 992, 996.) It must ensure, however, that “[e]very legitimate inference that may be drawn from the evidence must be drawn in favor of the information.” (Ibid.) In other words, our inquiry is whether, based on the facts presented below, there is “ ‘ “ ‘some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it.’ “ ‘ “ (People v. Superior Court (Bell) (2002) 99 Cal.App.4th 1334, 1339.) An information is only to be set aside “when there is a total absence of evidence to support a necessary element of the offense charged.” (People v. Superior Court (Jurado) (1992) 4 Cal.App.4th 1217, 1226.)

When Crunk was shot, Bloom was upstairs making sure that Crunk’s daughter, Katie, would not interfere with the robbery. Moreover, Bloom’s comment to Katie that her father would not be hurt, if sincere, suggests that he did not intend that her father would be shot. But those facts do not warrant dismissal of the attempted murder charge against Bloom in this case. Murder or attempted murder can be a natural and probable consequence of robbery. (People v. Prettyman (1996) 14 Cal.4th 248, 262-263; People v. Cummins (2005) 127 Cal.App.4th 667, 677; People v. Hammond (1986) 181 Cal.App.3d 463, 469-470.) A defendant need not be present when the charged offense was committed in order to be held liable if he aided and abetted the target offense and the charged offense was a natural and probable consequence of the target offense. (People v. Champion (1995) 9 Cal.4th 879, 933 [although defendant was not present in bathroom where rape occurred, his presence in the house at the time and his conduct in the robbery were sufficient to find him guilty of rape in concert].) Furthermore, Bloom may be guilty of the attempted first degree murder charge even if he did not intend for his codefendants to shoot Crunk. (People v. Nguyen (1993) 21 Cal.App.4th 518, 530.) All that is necessary is that the jury find the attempted first degree murder to be a natural and probable consequence of the target crime of robbery which Bloom aided and abetted. (People v. Rogers (1985) 172 Cal.App.3d 502, 507.) On the facts in this case a jury could make such a finding.

Bloom correctly points out that to determine whether the ultimate crime is a natural consequence of the target crime requires a particularized factual assessment of each situation. An abstract or general consideration of the type of crime alleged is insufficient. As an example, Bloom cites Nguyen which dealt with two robberies committed on the same day: one of a tanning salon and one of a spa. At the tanning salon one of the defendants placed a gun in the owner’s vagina, threatening to shoot if she did not produce her valuables. At the spa, one of the defendants forcibly violated a victim with his finger. The Court of Appeal held that, with respect to the tanning salon incident, the trial court did not err when it instructed the jury on aider and abettor liability for sexual penetration. There the penetration with the weapon was a natural and probable result of the robbery. With respect to the spa incident, however, the appellate court held that the evidence was insufficient to support the convictions of the defendants as accessories because the assault was not intended to facilitate the robbery and the defendants neither participated in the assault nor did anything in their escape that would not have been expected of someone trying to escape a simple robbery. (People v. Nguyen, supra, 21 Cal.App.4th at p. 536.) By carefully analyzing specific facts, the Nguyen court clarified its holding that forcible sexual penetration could be a natural consequence of a robbery--and explained how the application of this principle to the two incidents resulted in seemingly opposite outcomes.

But Bloom points to, and we perceive, nothing in the facts of the Crunk robbery that would preclude a reasonable jury from finding that his attempted murder was foreseeable. Three men in masks, at least two of them armed, entered the victim’s home. They intended to forcibly require him to open a safe at gunpoint, and anticipated that his daughter would be in the home at the time of the robbery. A jury could reasonably conclude that a victim in these circumstances may resist or attempt to flee and be shot by the intruders. The attempted murder here could be considered the natural and probable consequence of an armed home invasion robbery. In short, particularized analysis of the facts demonstrate that the attempted murder charge against Bloom should not have been dismissed.

This court may employ the accelerated Palma[2] procedure “when petitioner's entitlement to relief is so obvious that no purpose could reasonably be served by plenary consideration of the issue . . . or when there is an unusual urgency requiring acceleration of the normal process.” (Ng v. Superior Court (1992) 4 Cal.4th 29, 35; see also Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1236-1237, 1240-1241.) Here (1) the comparatively low standard that must be met to hold Bloom to answer a charge

coupled with (2) case law, establishing that the shooting of a victim during an armed robbery or assault to overcome his resistance may be a natural and probable consequence of the target offense, combine to make petitioner clearly entitled to relief. A prompt decision is also warranted in light of the scheduled November 9 trial date.

Let a peremptory writ of mandate issue commanding respondent superior court to vacate its order dismissing the charge of attempted first degree murder against real party in interest Michael James Bloom and to enter a new order reinstating the charge. This decision is final as to this court immediately. (Cal. Rules of Court, rule 24(b)(3).)

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Siggins, J.

We concur:

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McGuiness, P.J.

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Parrilli, J.

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[1] Petitioner initially argued that Bloom had not properly joined his codefendants’ motion to dismiss the attempted murder charge and therefore, the trial court had no jurisdiction to consider the issue. After reviewing Bloom’s informal opposition to petition for writ of mandate, however, the People have withdrawn this argument. Consequently, we will assume that Bloom adequately challenged the attempted murder charge below.

[2] See Palma v. U.S. International Fasteners, Inc. (1984) 36 Cal.3d 171.