(Sonoma County Super. Ct. No. SCR-527869). Trial Judge: Hon. Kenneth J. Gnoss.
The opinion of the court was delivered by: Lambden, J.
CERTIFIED FOR PUBLICATION
The defendants in this case were charged with possession for sale of cocaine and conspiracy to possess cocaine for sale. The Sonoma County District Attorney contends that two different trial judges misapplied the governing law regarding the corpus delicti rule in dismissing the conspiracy count. Appellant urges us to hold that the corpus delicti rule's limitation on the use of defendants' extra-judicial statements has been eliminated from the preliminary examination stage of criminal proceedings. However, we conclude that although the defendants' statements might have been introduced to determine whether they would be held to answer, such statements remained irrelevant until the corpus delicti rule had been otherwise satisfied. Our Supreme Court has not understood the 1982 constitutional amendment at the center of appellant's argument to have fully abrogated the rule requiring independent evidence of the alleged crime. We agree with that conclusion. In the preliminary examination stage of criminal proceedings, the application of the classical corpus delicti rule in California remains unabated.
Beginning in May 2007, Santa Rosa Police Department detectives conducted an elaborate investigation of respondent Frank Evan Powers-Monachello (Powers), whom they suspected of dealing large amounts of cocaine in Sonoma County. Surveillance of Powers extended over several months and more than one county: at times, tracking devices were attached to his car, he was observed interacting with the other defendants on several occasion, and he was seen frequently at the home of two co-defendants where a safe was ultimately found to contain a large amount of cocaine. Powers had the key to the safe and regularly provided cocaine to the other defendants.
Respondent and three co-defendants*fn1 were charged by a complaint with four felony counts: (1) conspiracy to possess cocaine for sale (Pen. Code, § 182, subd. (a)(1))*fn2 ; (2) possession of cocaine for sale (Health & Saf. Code, § 11351); (3) cultivation of marijuana (Health & Saf. Code, § 11358); and (4) possession of marijuana for sale. (Health & Saf. Code, § 11359.)
The information alleged 10 facts to support the conspiracy charge:
"1. [Powers] drives out of county on several occasions.
"2. Upon his return to the county, Powers immediately goes to 1109 Copeland Creek Drive, Rohnert Park.
"3. 1109 Copeland Creek Drive is owned/occupied by [Scheiner] and [Gearardo].
"4. Powers stores a safe at 1109 Copeland Creek Drive, in exchange he provided approximately 3.5 grams of cocaine per day to Scheiner and Gearardo.
"5. Powers possessed the key to the above described safe.
"6. Powers arrives almost daily to access or store cocaine in the safe at 1109 Copeland Creek Drive.
"7. [Floyd] arrived at 1109 Copeland Creek Drive, when Scheiner and Powers were present.
"8. Powers provides cocaine to Floyd.
"9. Powers gave Floyd two small boxes.
"10. Floyd loaded the boxes into his car and drove away."
At the two-day preliminary hearing in August 2008, Sonoma County Superior Court Judge Elliot Daum found probable cause for the possession charges, but dismissed the conspiracy charge for failure to satisfy the corpus delicti rule.
The prosecutor promptly filed a new, but essentially identical, four-count information alleging the same conspiracy charge that Judge Daum had dismissed. Respondent again moved under section 995 to dismiss the conspiracy charge on the ground that the prosecution had not produced evidence to satisfy the corpus delicti rule. After reviewing the entire transcript of the prior preliminary hearing and further briefing and argument, Judge Kenneth Gnoss granted respondent's motion and dismissed the conspiracy charge as to all four defendants as follows: "[T]here [was] insufficient, independent evidence presented at the preliminary hearing to establish an agreement or a conspiracy . . . the [defendants'] statements should not be introduced."
The Sonoma County District Attorney*fn3 filed this timely appeal.
The corpus delicti rule provides that " '[i]n every criminal trial, the prosecution must prove the corpus delicti, or the body of the crime itself--i.e., the fact of the injury, loss, or harm, and the existence of a criminal agency as its cause. In California, it has traditionally been held, the prosecution cannot satisfy this burden by relying exclusively upon the extra-judicial statements, confessions, or admissions of the defendants. [Citations.]' [Citation.] This includes 'preoffense statements of later intent as well as . . . postoffense admissions and confessions.' " (People v. Miranda (2008) 161 Cal.App.4th 98, 107.)
" ' "The corpus delicti rule was established by the courts to 'protect a defendant from the possibility of fabricated testimony out of which might be wrongfully established both the crime and its perpetrator.' . . . The corpus delicti rule arose from a judicial concern that false confessions would lead to unjust convictions. . . . Today's judicial retention of the rule reflects the continued fear that confessions may be the result of either improper police activity or the mental instability of the accused, and the recognition that juries are likely to accept confessions uncritically. . . ." ' " (Creutz v. Superior Court (1996) 49 Cal.App.4th 822, 830, quoting People v. Moreno (1987) 188 Cal.App.3d 1179, 1187.) In the preliminary hearing context, it has long been held that "[a] defendant cannot be held to answer unless the corpus delicti of the offenses with which he is charged is established independently of his extra-judicial statements." (People v. Martinez (1972) 27 Cal.App.3d 131, 133.)
In 1982, the voters approved the "Right to Truth-in-Evidence" amendment to the California Constitution,*fn4 which provides that "relevant evidence shall not be excluded in any criminal proceeding." (Cal. Const., art. I, § 28, subd. (d).) Based on this amendment, appellant urges us to conclude that the corpus delicti requirement has been eliminated at the preliminary hearing stage of criminal proceedings. Appellant argues the trial court's dismissal of the conspiracy count was error because it was "based on a former corpus delicti rule, and resulted in the erroneous non-consideration of evidence relevant to the conspiracy charge."
Appellant complains that the trial court accepted the defense argument that the only possible evidence of agreement between the parties would be the statements of the co-defendants and that "all arguments at the hearing echoed this theme." The district attorney countered this argument in the trial court, and argues here, by contending that as a result of the "Right to Truth-in-Evidence" amendment to the California Constitution, the co-defendants' extra-judicial admissions must be considered to determine whether the corpus delicti rule is satisfied.
Accordingly, the centerpiece of appellant's argument is that the co-defendants' extra-judicial statements should have been admitted into evidence at the preliminary hearing, and that those statements could have helped to provide sufficient "independent" evidence of the corpus delicti to support of the conspiracy charge. We agree that the trial court erred at the preliminary hearing by refusing to admit certain extra-judicial statements by the defendants which were relevant to the charges. However, we disagree that the admission of the the statements would have made any difference. Although extra-judicial statements may be considered in determining whether the defendants may be held to answer; the consideration of such statements is proper only after the corpus delicti rule is first satisfied.
Appellant's mistake in arguing otherwise is based on his failure to appreciate the difference between the operation of the corpus delicti rule at the preliminary examination of the charges, and at trial, which was the situation in People v. Alvarez (2002) 27 Cal.4th 1161 (Alvarez), upon which both parties rely. The dissent compounds this mistake by suggesting that Alvarez lessened the strictures of the corpus delicti rule at the preliminary hearing stage as follows: "the required 'independent evidence' does not have to stand alone, i.e., it may be considered in conjunction with the extra-judicial statements." In fact, Alvarez affirmed the traditional requirement for independent evidence to establish the corpus delicti; and whether the extra-judicial admissions of the defendants could be used at trial for some other purpose is not at issue here.
In Alvarez, the Supreme Court addressed the impact on the corpus delicti rule of the "Right to Truth-in-Evidence" amendment to the California Constitution, which provides that "relevant evidence shall not be excluded in any criminal proceeding." (Cal. Const., art. I, § 28, subd. (d).) Unlike the present case, Alvarez involved a trial. The Court of Appeal held that the trial court erred in failing to give a sua sponte instruction regarding "the need for independent proof of the corpus delicti" for committing a lewd act on a child, and reversed on that count. (Alvarez, supra, 27 Cal.4th at p. 1165.) The court found that failure to give the instruction "was prejudicial, because aside from defendant's preoffense statements introduced at trial, there was no other evidence of his lewd intent in touching the victim." (Ibid.) The Supreme Court held that the Court of Appeal had correctly ruled that section 28, subdivision (d) of the California Constitution had not "abrogated the need for a corpus delicti instruction." (Alvarez, at p. 1166.) Nevertheless, the Supreme Court reversed and held that the instructional error was harmless "because the independent evidence of lewd intent was present." (Ibid.)
Justice Baxter's opinion in Alvarez thus concluded that the constitutional provision changed only one, not both, aspects of the corpus delicti rule: the first aspect regarding the admission of extra-judicial statements. The second aspect, regarding the rule's independent proof requirement to support a conviction remained undisturbed. The opinion's legal conclusions are: first, that "section 28 [subdivision] (d) [of the California Constitution] did abrogate any corpus delicti basis for excluding the defendant's extra-judicial statements from evidence"; and second, that section 28, subdivision (d) "did not abrogate the corpus delicti rule insofar as it provides that every conviction must be supported by some proof of the corpus delicti aside from or in addition to such statements, and that the jury must be so instructed. " (Alvarez, supra, 27 Cal.4th at p. 1165.)
As a result of the first determination in Alvarez, "there no longer exists a trial objection to the admission in evidence of the defendant's out-of-court statements on grounds that independent proof of the corpus delicti is lacking. If otherwise admissible, the defendant's extra-judicial utterances may be introduced in his or her trial without regard to whether the prosecution has already provided, or promises to provide, independent prima facie proof that a criminal act was committed." (Alvarez, supra, 27 Cal.4th at p. 1180, italics added.) However, as a result of the second determination, the jury must be instructed "that no person may be convicted absent evidence of the crime independent of his or her out-of-court statements"; also, the defendant may, on appeal, "attack the sufficiency of the prosecution's independent showing." (Ibid.)
The second determination of Alvarez is most relevant to this case, because it affirms application of the classical corpus delicti rule at the preliminary hearing stage of the criminal proceedings. If a defendant cannot be convicted in the absence of independent evidence establishing the corpus delicti, a magistrate cannot, in the absence of such independent evidence, hold him to answer. The magistrate cannot consider extra-judicial statements of the accused for the same reason underlying the mandated jury instruction in Alvarez: The prosecution must first prove the corpus delicti of the charged offense without the use of extra-judicial statements. Accordingly, "Alvarez changes nothing when it comes to application of the corpus delicti rule to preliminary hearings (except that there is no longer any basis to exclude a defendant's extra-judicial statements from evidence)." (Rayyis v. Superior Court (2005) 133 Cal.App.4th 138, 148 (Rayyis); accord, People v. Herrera (2006) 136 Cal.App.4th 1191.)
Respondent concedes that Judge Daum erred at the initial preliminary hearing by refusing to admit the extra-judicial statements of the defendants. It is an easy concession to make under these circumstances because the law is unambiguous: At the preliminary hearing, the magistrate could not consider the extra-judicial statements when making the threshold determination of whether the corpus delicti of conspiracy had been established, but should admit the statements after the corpus delicti rule was satisfied.*fn5 Here, the failure to admit the statements made no difference. Extra-judicial statements were admissible to answer the second--and distinct--set of questions posed at the preliminary hearing: whether there was sufficient evidence to support prosecution of each of the charges. If Judge Daum had determined that the corpus delicti was established, he surely would have formally admitted the extra-judicial statements and considered them in determining whether to hold respondents to answer on the conspiracy charge. Appellant and our dissenting colleague are simply mistaken in arguing that the extra-judicial admissions can add any weight to the preliminary hearing scale before, and unless, the corpus delicti rule is first satisfied.
Although admissible at a preliminary hearing, extra-judicial statements must be accompanied by independent evidence to support a charge or conviction. Specifically, the defendant may not be held to answer if no independent evidence of the corpus delicti is produced at the preliminary examination. (Jones v. Superior Court (1979) 96 Cal.App.3d 390, 393 accord Alvarez, supra, 27 Cal.4th at pp. 1169-1170, 1180 ["section 28, subd. (d) [of the California Constitution] did not eliminate the independent-proof rule insofar as that rule prohibits conviction where the only evidence that the crime was committed is the defendant's own statements outside of court"]; see also People v. Jones (1998) 17 Cal.4th 279, 300-301; People v. Herrera, supra, 136 Cal.App.4th at p. 1202.) The purpose of the preliminary hearing is to determine whether there is probable cause to require the defendant to answer to the charges against him or her. (§ 872, subd. (a); People v. Brice (1982) 130 Cal.App.3d 201, 209, citing Jennings v. Superior Court (1967) 66 Cal.2d 867, 880; [to order a defendant to answer to a charge, there must be "sufficient cause to believe that the defendant is guilty"].) At the preliminary hearing sufficient independent evidence is required to order the defendant to answer to a charge.
Appellant contends that, in reviewing a trial court's order to dismiss a charge, we determine "whether there is sufficient evidence in the preliminary examination transcript to permit the district attorney to file such allegation and take the matter to trial." (People v. Superior Court (Jurado) (1992) 4 Cal.App.4th 1217, 1225, citing People v. Laiwa (1983) 34 Cal.3d 711, 718, superseded by statute on other grounds.) In support of the conspiracy count, the prosecution here relied on police testimony, including Detective Tomlin's opinions about the co-defendants' involvement, defendants' "statements about the operational intricacies of [defendant's] drug distribution enterprise," and the "detectives observations of [defendant] . . . engaging in counter-surveillance . . . [and possessing a] large amount of cocaine . . . , cutting tools[,] and ingredients indicating large scale narcotics sales . . . ." Although the facts adduced at the hearings certainly supported the prosecution of sales of cocaine by certain of the defendants, they are insufficient to infer that Powers and his associates conspired to sell cocaine together.
The conspiracy charge requires proof of four elements: (1) intent to agree and actual agreement to possess cocaine for sale, (2) intent for coconspirators to possess cocaine for sale; (3) overt acts to carry out the conspiracy, and (4) commission of at least one overt act in California. (See § 182, subd. (a); People v. Bogan (2007) 152 Cal.App.4th 1070; CALJIC No. 415.) The first and third element are principally at issue in this case, and we examine the record to separate the extra-judicial statements of the defendants from independent evidence of facts from which a conspiratorial agreement might be inferred. "[I]ndependent proof may be circumstantial and . . . is sufficient if it permits an inference of criminal conduct, even if a non-criminal explanation is plausible." (Alvarez, supra, 27 Cal.4th at p. 1171.) The inference need only be reasonable. (People v. Jones, supra, 17 Cal.4th at pp. 301-302.) Although we agree with our dissenting colleague that the evidence ...