(Super. Ct. No. 2009012184) Rebecca S. Riley, Judge Superior Court County of Ventura
The opinion of the court was delivered by: Perren, J.
CERTIFIED FOR PUBLICATION
Penal Code section 995a, subdivision (b)(1)*fn1 gives trial courts discretion to deny a motion to set aside an information under section 995 when the motion is based on "minor errors of omission, ambiguity, or technical defect which can be expeditiously cured or corrected without a rehearing of a substantial portion of the evidence." In this case, the People invoked section 995a in opposing defendant Juan Meza's motion to set aside the information charging him with two counts of selling heroin (Health & Saf. Code, § 11352, subd. (a)). Meza's motion validly asserted that no evidence had been offered at the preliminary hearing to support the allegation that the three-year statute of limitations was tolled while his prior prosecution for the same charges was pending (§§ 801, 803, subd. (b)). The People moved the court to order further proceedings to correct the error in accordance with section 995a. The court found that although the error could be easily and expeditiously cured, the People's failure to present evidence that the statute of limitations was tolled was not a "minor error of omission" subject to correction under section 995a. Accordingly, the court denied the People's motion and set aside the information. The People appeal. (§ 1238, subd. (a)(1).)
We conclude that the evidentiary omission at issue here is a "minor error," as that term is understood for purposes of section 995a. We also conclude that substantial evidence supports the court's finding that the error can be easily and expeditiously corrected. Because the record demonstrates that the court would have granted the People's motion to correct the error but for its mistaken belief that it would be an abuse of discretion to do so, we reverse the order setting aside the information, reverse the order denying the People's section 995a motion, and remand for further proceedings.
FACTS AND PROCEDURAL HISTORY
On April 1, 2009, a felony complaint was filed charging Meza with two counts of selling heroin, in violation of Health and Safety Code section 11352, subdivision (a). A prior burglary conviction was alleged as a strike on both counts. Count 1 was alleged to have been committed on or about February 17, 2006, while count 2 was allegedly committed on or about February 22, 2006. The face of the complaint bears the case number 2009012184 along with the bold-faced notation "REFILE CASE: 2006016110."
On April 2, 2009, Meza demurred to the complaint on the ground that the charges were barred by the three-year statute of limitations. (§ 801.) After the court sustained the demurrer on that basis, the prosecution filed an amended felony complaint adding the following to each count: "It is further alleged that prosecution of the defendant . . . for the same conduct was pending in a court of this state in Ventura County from October 17, 2007 through April 2, 2009 in case number 2006016110 and that the statute of limitations is tolled and extended for that period, within the meaning of Penal Code section 803(b)." Meza subsequently entered a plea of not guilty on both counts.
At the preliminary hearing, Ventura County Sheriff's Detective Carlos Macias testified that Meza sold two grams of heroin to a confidential informant on February 17, 2006, and arranged another sale that took place five days later on February 22. Meza did not call any witnesses. After the prosecution rested, Meza's attorney essentially argued that Meza should not be held to answer on either charge because Detective Macias's testimony did not establish that he actually witnessed the sales and the confidential informant had a motive to lie. No issue was raised regarding the statute of limitations. At the conclusion of the hearing the trial court, sitting as magistrate, found there was sufficient evidence to believe that Meza was guilty of both charges and accordingly held him to answer on both counts. The prosecution subsequently filed a felony information that included the same charges and allegations as the amended complaint, including the allegations regarding the tolling of the statute of limitations.
Meza then moved to set aside the information on the ground that no evidence had been presented at the preliminary hearing to support the allegation that the three-year statute of limitations was tolled while the earlier prosecution for the same charges was pending. In his moving papers, Meza acknowledged that the prior action in case number 2006016110 involved the same charges, and that the prior action had been dismissed by the prosecution on April 2, 2009. Meza further acknowledged that the allegations regarding the tolling of the statute of limitations that were included in the amended complaint "properly alleg[e] the basis for delay, owing to Case Number 2006016110." Meza argued, however, that the information had to be set aside because no evidence supporting the allegation was offered at the preliminary hearing.
The prosecution opposed the motion, arguing that the evidentiary omission regarding the tolling of the statute of limitations was a "minor" error that could be expeditiously corrected in further proceedings under section 995a, and urged the court to order such proceedings in the exercise of its discretion. In asking the court to exercise its discretion to consider additional evidence under section 995a, the prosecution noted that the presentation of that evidence would consist solely of "ask[ing] the Court a single question to take judicial notice of its own file showing that there was a case that tolled the statute. [¶] . . . [A]ll we're asking for is to reopen, to ask the single question, to cure a technical defect, to meet the jurisdictional requirements of the statute of limitations by having the Court do that." Meza did not dispute that the error could be expeditiously corrected in this fashion, yet maintained that the error was not a "minor" one subject to correction under section 995a.
The court denied the prosecution's request to present additional evidence and granted Meza's motion to set aside the information. In doing so, the court stated: "It's very frustrating to grant it, because I do believe that if there had been a request to reopen at the time of the preliminary hearing, that in all likelihood that would have been granted. [¶] And I read the transcript, and I don't actually see anything in the argument of the defense that was pointing out the failure to present evidence on the statute of limitations, which would have put the magistrate on notice before issuing a holding order if that statute of limitations was an issue. And as a result, it is very frustrating for me to grant this. [¶] But I am granting it, because it seems to me as I analyze the cases, that jurisdiction is not a comparatively unimportant or minor matter, and it would be, therefore, I think an abuse of discretion to send it back."
Section 995a states in pertinent part: "Without setting aside the information, the court may, upon motion of the prosecuting attorney, order further proceedings to correct errors alleged by the defendant if the court finds that such errors are minor errors of omission, ambiguity, or technical defect which can be expeditiously cured or corrected without a rehearing of a substantial portion of the evidence. The court may remand the cause to the committing magistrate for further proceedings, or if the parties and the court agree, the court may itself sit as a magistrate and conduct further proceedings. When ...