(Monterey County Super. Ct. No. SS081196) Trial Judge: Honorable Larry E. Hayes
The opinion of the court was delivered by: McAdams, J.
CERTIFIED FOR PUBLICATION
Petitioner Edgardo Garcia requests the issuance of a writ of mandate directing the trial court to vacate its order denying his motion to set aside count 3 of the information pursuant to Penal Code section 995, and to enter a new order dismissing count 3 of the information.*fn1 The question presented is whether the trial court erred in granting the People‟s request to reopen the preliminary hearing, pursuant to section 995a, subdivision (b)(1), for the purpose of permitting the court, sitting as a magistrate, to hear new evidence before ruling on defendant‟s motion to set aside count 3 of the information, which alleges a felony violation of section 148. We hold that the trial court erred, on these facts, by allowing the prosecutor to present revised testimony in order fill an evidentiary vacuum concerning the gravamen of the offense. We will therefore issue a peremptory writ of mandate vacating the respondent superior court‟s order denying petitioner‟s section 995 motion with respect to count 3, and directing respondent court to enter an order dismissing count 3 of the information.
STATEMENT OF THE CASE AND FACTS
Petitioner is a defendant in a criminal action currently pending in the superior court. By information, he is charged in Monterey County with the following felony offenses: concealing a firearm on his person (§ 12025, subd. (a)(2), count 1); carrying an unregistered, loaded firearm on his person (§ 12031, subd. (a)(1), count 2); resisting, delaying or obstructing a police officer in the discharge or attempted discharge of his duty (§ 148, subd. (a)(1), count 3); and actively participating in a street gang (§ 186.22, subd. (a), count 4). Counts 1 and 2 include special allegations that defendant, during the commission of the offenses, was an active participant in a criminal street gang; was not the registered owner of the firearm; "knew and reasonably should have known" the firearm was stolen; and committed the offenses for the benefit of, at the direction of, or in association with the Norteño criminal street gang, with the specific intent to promote, further or assist in any criminal conduct by gang members. (§§ 12025, subds. (b)(3), (b)(6), (b)(2); 12031, subds. (a)(2)(b), (a)(2)(c), (a)(2)(f); 186.22(b)(1).) Count 3 (resisting, etc. arrest) includes the allegation that defendant resisted arrest for the benefit of, at the direction of, or in association with the Norteño criminal street gang. (§ 186.22, subd. (d).)*fn2
Facts Adduced at the Initial Preliminary Hearing*fn3
A preliminary hearing was held on May 9, 2008. Police Officer Salvador Reynaga testified that at around 10:00 p.m. on March 26, 2008, he was on patrol in the city of Seaside with fellow officer Nick Borges, heading eastbound on Olympia, when he noticed a group of four Hispanic men walking south on Noche Buena. As soon as the men saw the officers‟ police car, they separated. Officer Reynaga, who was the driver, immediately stopped the car and both officers exited. One of the men ran, and Officer Reynaga gave chase. Thus, Officer Reynaga was not in the area when his partner made contact with defendant Garcia.
Narcotics detective Nick Borges testified that he focused on defendant because he was familiar with defendant from prior police contacts and arrests and knew that defendant was a gang affiliate. Borges stayed by the police car and watched defendant, maintaining eye contact with him, as defendant rapidly walked west on Olympia. Detective Borges noticed a bulge protruding near defendant‟s waistband area; defendant had both hands cupped around the bulge as if he were holding something. Defendant walked behind a green van that was parked on the street. Borges was still able to see defendant‟s upper body through the van‟s windows. Defendant‟s "fast walk came to a complete stop. He was looking at me, seeing where my position was. And I saw him make a tossing motion with his right hand. And exiting from his hand was the silhouette of a dark object that went into the front yard of I believe 1293 Olympia." No one else was in the area. He searched the yard area and found a loaded .32 caliber Deutsche-Werke handgun in a flower bed. He arrested defendant.
Defendant was wearing gang-related clothing: a red belt with the letter "N" on the belt buckle. He also had a red cellular telephone that had numerous photographs of what Borges believed to be gang indicia. Defendant also sported several gang-related tattoos.
On cross-examination, Detective Borges was asked: "[W]hen you were making contact with these four individuals, had you observed them committing any crime?" He answered "no." Borges agreed it was "a consensual encounter" the purpose of which "was just to make contact with the individuals." He elaborated: "I was concerned. I was suspicious of the fact that they all had dispersed when they saw the police car. That was the trigger for us contacting them." However, while the three other men scattered, defendant continued walking westbound on Olympia, in the direction that he was already going. Nevertheless, "[defendant] was walking not at a normal rate that a person would walk. He was walking rapidly. His eyes were open wide. He was looking directly at me. He had a blank look on his face. And I had contacted him before. And he had never had that look on his face or his eyes opened as wide. And I‟d never seen him walking at that rate of speed. And, also, again, he was holding a bulge. All those put together, he appeared to be nervous that the police were getting ready to contact him."
Seaside Officer Dexter Johnson, one of the gang officers for the department, testified that in his opinion defendant "is an active member of the Norteño street gang." He was asked: "Now, Officer Borges described that Mr. Garcia was walking away from him. If you consider that resisting arrest, how does that benefit the gang?" Officer Johnson responded: "Basically the will to get away from the police in possession of a firearm can do nothing but keep that firearm out on the street as it can be traded for other weapons, or it could be used to commit a criminal act against rival gang member or other members within the community."
At the conclusion of the preliminary hearing, defense counsel asked that defendant not be held to answer on the resisting arrest count because "[t]here was no testimony given that Mr. Garcia willfully or unlawfully resisted or delayed a peace officer in the course of his duties." The magistrate responded: "He was walking away from the officer who was approaching, trying to approach him. And that‟s delaying the officer in the performance of his duties. Isn‟t it?" The court rejected defense counsel‟s further argument that an individual has the right to walk away from a consensual encounter and held defendant to answer on all charges.
The Section 995 and 995a Motions
On June 9, 2008, defense counsel filed a motion to dismiss the information pursuant to section 995 on the ground, among others, "that the felony enhanced resisting, obstructing, or delaying a peace officer must be dismissed because there was absolutely no evidence presented that Mr. Garcia in any way resisted, delayed, or obstructed a peace officer in the course of his duties."
On June 16, 2008, the District Attorney filed a response to defendant‟s motion. In it, "[t]he People concede the error of failing to establish the officer gave a command for defendant to stop. The People request the case be remanded to the magistrate to correct the deficiency" pursuant to section 995, subdivision (b)(1). "The People‟s offer of proof is that if recalled to the stand, Officer Borges would testify similar to the following paragraph in his report. "I pointed at Garcia and ordered him to stop. Garcia‟s eyes were opened wide and he ignored my command. He continued to walk at a fast pace. At that time, I walked towards him and he walked behind the green minivan . . . .‟ [¶] The People believe that the evidence of Officer Borges‟ observations and his suspicion that defendant was carrying a weapon based on his training and experience and observations, demonstrates he was lawfully performing his duties when he ordered defendant to stop."
On June 20, 2008, the superior court heard argument on the District Attorney‟s request to reopen the preliminary hearing for further testimony by Detective Borges. The court stated that it agreed with the defense that the People "didn‟t put on the evidence sufficient to hold him to answer to the charge." However, the court considered the blunder "the kind of omission that the statute [section 995a, subd. (b)(1)] allows for correcting" and granted the district attorney‟s request to reopen the preliminary hearing.
Noting his continuing objection to any "do over" at all, defense counsel agreed with the prosecutor to permit the superior court judge to sit as magistrate for the purpose of reopening the preliminary hearing to take additional evidence from Detective Borges.
On June 24, 2008, the court heard and denied defendant‟s renewed motion for reconsideration of the court‟s earlier ruling.
Facts Adduced at the Re-opened Preliminary Hearing
On June 27, 2008, the court heard Detective Borges‟ revised testimony, as follows.
"[PROSECUTOR]: Officer Borges, you‟ve previously testified in this matter; is that correct?
"[PROSECUTOR]: And without going through all of the facts, I just need to ask you one question. Which is you‟ve previously described seeing Mr. Garcia and recognizing him; is that correct?
"[PROSECUTOR]: Did you say anything to him at that point?
"[DEFENSE COUNSEL]: Object[ion]. . . .
"[PROSECUTOR]: When you were still at your patrol car, I believe that‟s when you said you saw [defendant]?
"[PROSECUTOR]: What was he doing at that point?
"[OFFICER BORGES]: He was walking west ...