Ortiz v. Sup. Ct.

Filed 10/11/06 Ortiz v. Sup. Ct. CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

ORIGINAL PROCEEDING. Petition for Writ of Prohibition, Paul A. Bacigalupo, Judge. Petition Granted.

Michael P. Judge, Public Defender of Los Angeles County, Lloyd E. Handler and John Hamilton Scott, Deputy Public Defenders.

No Appearance for Respondent.

Steve Cooley, District Attorney of Los Angeles County, Patrick D. Moran and Phyllis C. Asayama, Deputy District Attorneys.

Defendant Miguel Ortiz petitions this court for a writ of prohibition restraining his trial upon count 2 of the information currently pending against him insofar as the count alleges a felony violation of Penal Code section 594.[1] Ortiz contends the Magistrate made a binding factual finding at his preliminary hearing concerning the cost to repair a van that precludes a charge of felony vandalism of the van. We grant the petition.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On June 5, 2006, Ortiz was charged in an information with multiple counts; the count at issue here alleged felony vandalism arising out of damage to a van belonging to the boyfriend of his former girlfriend.

At the preliminary hearing held May 22, 2006, Dean Shenk testified that on May 2, 2006, he was at home with Pamela Vasquez, defendant’s former girlfriend. Shenk saw defendant hit Shenk’s van on the hood and on the right passenger side. There were two dents on the side of the van; one of them was the size of a softball. On direct, Shenk testified that it would cost “around $1,000” to repair the dents in the van; after objection, Shenk testified that although he did no body work on cars, he did mechanical work, and his experience gave him “an idea” of the cost to fix the dents.

On cross-examination, Shenk testified that the dents had not broken or cracked the paint and were on relatively large panels of sheet metal on the vehicle. Shenk had not taken the vehicle in for an estimate of repairs. He testified that he did not know whether they were the type of dents that could be “popped out” with large magnets, rendering the cost of repair minimal, or whether the body shop would have to take the door apart. He stated that he would not know what the cost to repair would be unless he got an estimate. Defense counsel moved to strike the estimate as being invalid and without foundation.

Defense counsel argued that there was insufficient evidence to establish on count 2 that the damage to the van was in excess of $400. Mr. Shenk had admitted he had not gotten an estimate, and had no way of providing a realistic estimate because the van might have been repaired by popping out the dents, or more extensive work might have been required.

The prosecution argued that at the preliminary hearing stage, it was not necessary for the prosecution to establish beyond a reasonable doubt the cost of repairing the dents; rather, it only had to show there was a reasonable suspicion the dents could have cost more than $400 to repair. Further, counsel argued, it did not take a great deal of experience to know that large dents would cost more than $400 to fix.

The defense responded that the witness had no experience in a body shop, and that because the burden was on the prosecution to make a prima facie showing, there was insufficient evidence to support a felony charge because the witness’s testimony amounted to speculation.

The court reduced count 2 to a misdemeanor. The court found “that [the] People have met their burden that there was vandalism, but not $400. On cross-examination, Mr. Shenk did admit that it could be the type of dent that could be fixed in a relatively cheap manner, that it may not cost as much as he had estimated. There was no further testimony on redirect regarding what specific experiences he may have in fixing other dents. He had generalized experience, but he did admit that he had no expertise in body work of cars; that his expertise was in the mechanic part of the car.”

The information filed on June 6, 2005 charged count 2 as a felony.

Defendant moved to set aside the information pursuant to section 995, arguing that insufficient evidence was presented at the preliminary hearing to support a charge of felony vandalism. Defendant contended that the court made findings of fact that the estimate of $1,000 was speculative and lacked foundation.

At the hearing, the prosecution argued that the magistrate’s statement could be interpreted either as an indication she did not believe Shenk’s testimony, or that she was uncertain whether in fact the cost exceeded $400. The prosecution interpreted the magistrate’s statement concerning the cost of repair to mean that Shenk thought it would cost $1,000 using conventional repair methods, and he did not know whether cheaper alternatives could be used, or how much those would cost. Defendant argued that Shenk’s testimony constituted a rough estimate, and that cross-examination established that he did not have the background to make such an estimate.

The trial court stated that the Magistrate had made a finding that there was insufficient evidence to hold the defendant to a felony. The court commented on the fact that although Shenk testified to the cost of repair, on cross-examination he admitted he had never performed body work, and that it “was just kind of his estimate, but it really wasn’t substantiated on anything like estimates or something along those lines.” Thereafter, the trial court denied the motion, finding that “the magistrate was acting as a person of ordinary caution and prudence and she could conscientiously entertain a reasonable suspicion that a public offense had been committed in which the defendant participated.”

DISCUSSION

Defendant argues that Shenk’s testimony was contradictory, and the magistrate’s ruling indicates she did not credit his testimony that repairs to the van would cost $1,000, but instead relied on his testimony that he did not know how much the repairs would cost, resulting in a finding there was insufficient evidence to charge defendant with felony vandalism. The prosecution contends that the magistrate made no express factual findings, and therefore the ruling is a question of law that must be reviewed de novo by this court.

A magistrate’s order dismissing a felony complaint is not a bar to prosecution for the same offense. (People v. Uhlemann (1973) 9 Cal.3d 662, 666.) The magistrate’s role at the preliminary hearing is limited to determining whether there is sufficient cause to believe the defendant is guilty of a public offense. (§§ 871, 872; Uhlemann, supra, 9 Cal.3d at p. 667.) “Sufficient cause” is defined as “such a state of facts as would lead a [person] of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion of the guilt of the accused.” (Uhlemann, supra, 9 Cal.3d at p. 667.) This role differs from that of the jury, which must be convinced beyond a reasonable doubt of the defendant’s guilt or innocence. (Ibid.)

A magistrate does not, however, determine the guilt or innocence of the defendant. (People v. Slaughter (1984) 35 Cal.3d 629, 637.) “The magistrate’s power to decide factual disputes exists to assist him in his determination of sufficient cause [citation]; if he can determine that issue without resolving factual conflicts, he may do so.” (Id. at pp. 637-638.) The magistrate may weigh the evidence, resolve conflicts, and give or withhold credence from particular witnesses. (Jones v. Superior Court (1971) 4 Cal.3d 660, 667.) The standard of proof for the magistrate’s determination is whether there exists probable cause to justify an arrest, but it need not be sufficient to support a conviction. (People v. Casillas (2001) 92 Cal.App.4th 171, 178.) The prosecution must make some showing as to the existence of each element of the charged offense. (Thompson v. Superior Court (2001) 91 Cal.App.4th 144, 148.)

If the magistrate makes factual findings, those findings will be binding upon the reviewing court if supported by substantial evidence. (People v. McGlothen (1987) 190 Cal.App.3d 1005, 1012.) If the magistrate has not rendered findings, we cannot assume that he or she has resolved factual disputes or passed upon the credibility of witnesses. We therefore review the magistrate’s action as a matter of law. (People v. Slaughter, supra, 35 Cal.3d at p. 638.)

In People v. McGlothen, supra, 190 Cal.App.3d 1005, two witnesses to a shooting gave contradictory testimony at the preliminary hearing. One witness to the actual shooting testified that four men drove off in a Cadillac with a white top, while a police officer responding to the scene testified he stopped a fleeing Cadillac with a black top containing two men, both of whom had gunshot residue on their hands. (Id. at pp. 1008-1009.) The magistrate found both witnesses credible, resolved the factual discrepancy in their testimony by finding a lack of probable cause, and dismissed the complaint. (Id. at p. 1010.) McGlothen reinstated the complaint, finding that in spite of the contradictory testimony, there was evidence to controvert the defendant’s claim they were not at the scene, and the findings of the magistrate did not lead to the conclusion that they were not, as a matter of fact, involved in the matter. Rather, “there was evidence presented which was unimpeached and credible that supported the inference that respondents were guilty of attempted murder. . . .” (Id. at p. 1015.)

Here, because the statute required more than $400 in damage in order to impose greater punishment, the burden was on the prosecution to make at least some showing that the damage to the van was more than $400. (§ 594, subds. (b)(1)-(2); Thompson v. Superior Court, supra, 91 Cal.App.4th at p. 148.) At the preliminary hearing, after giving his initial estimate of $1,000 in damages, Shenk testified that he did not know how much it would cost to repair the van, and that it could possibly be done by cheaper methods. The magistrate’s statements indicate she assessed the evidentiary value of his testimony, and resolved the inconsistencies in his testimony by concluding that “[the] People have met their burden that there was vandalism, but not $400.” This finding was binding upon the trial court if supported by substantial evidence; because Shenk also testified the van might be repaired for a minimal charge, the Magistrate’s conclusion was supported by the evidence and the trial court erred in denying defendant’s motion.

DISPOSITION

Defendant’s petition for writ of prohibition is granted. Let a peremptory writ issue commanding the trial court to vacate its order, and the cause is remanded to the trial court for further proceedings consistent with this opinion.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ZELON, J.

We concur:

JOHNSON, Acting P. J. WOODS, J.

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[1] All statutory references herein, unless otherwise noted, are to the Penal Code.