California Court of Appeals, Fourth District, Third Division
Modified and certified for publication 2/10/14
Appeal from a judgment of the Superior Court of Orange County No. 13NF1165, Carla Singer, Judge.
Tony Rackauckas, District Attorney, and Matt Lockhart, Deputy District Attorney, for Plaintiff and Appellant.
Frank Ospino, Public Defender, Jean Wilkinson, Chief Deputy Public Defender, Mark S. Brown, Assistant Public Defender, and Alison Worthington, Deputy Public Defender, for Defendant and Respondent.
The People filed a felony complaint alleging defendant violated Health and Safety Code section 11351 (possession of heroin for sale), Penal Code section 647, subdivision (f) (public intoxication), and Penal Code section 148.9, subdivision (a) (identifying himself to a police officer under a false name). At a preliminary hearing, the magistrate found the evidence was insufficient to hold defendant to answer on the possession for sale charge. The magistrate permitted the People to amend the complaint to add a fourth charge for simple possession of heroin in violation of Health and Safety Code section 11350, subdivision (a), and held defendant to answer on the remaining charges. The People subsequently filed an information including not only the three charges for which defendant was held to answer, but also again alleging the previously dismissed possession for sale charge. Defendant filed a motion to dismiss the possession for sale charge under section 995. The court, believing itself bound by the magistrate’s resolution, granted the motion. The People appealed.
We reverse. The court correctly concluded the magistrate had not made any express factual determinations that would bind the court, yet incorrectly concluded it could not revisit the magistrate’s ruling on the sufficiency of the evidence to hold defendant to answer. The latter finding is not binding on the court, and the court should have independently reviewed the evidence to determine its sufficiency. Having independently examined the evidence ourselves, we conclude there is sufficient evidence to charge defendant with possession for sale (Health & Saf. Code, § 11351).
Defendant was a passenger in a vehicle parked in an alley that was blocking traffic. Two officers approached the vehicle and found both the driver and defendant slumped over and unconscious. Defendant was arrested for public intoxication and his person was searched incident to arrest. The arresting officer found a plastic baggie containing a brown tar like substance resembling heroin. The officers found no drug paraphernalia, nor any tools of the drug selling trade on defendant’s person, and did not search the vehicle. The officer performed a “Valtox presumptive test” on the brown substance that revealed the presence of opiates. The defendant was transported to the police station where the substance was determined to weigh 10.33 grams.
At the preliminary hearing, the People’s expert testified the average heroin user uses “one tenth of a gram once or twice per day.” Accordingly, defendant possessed about 50 to 100 days worth of heroin. In the expert’s opinion, defendant possessed the heroin for sale.
The magistrate framed the issue as follows: “It appears the sole issue before the court really is whether or not quantity alone can support an opinion, for the purpose of the preliminary hearing, that it was possessed for the purposes of sales.” With respect to the People’s expert, the magistrate stated, “I find him to be credible, but the opinion of the [expert] officer that that alone is sufficient for proof of sales, I’m not so sure that’s enough for the court.” The magistrate concluded, “Burden of proof at the preliminary hearing is low. But why should the case go before a jury? Because that’s really not beyond a reasonable doubt standard. It will never meet that. So if it gets disposed of at some point down at Central Court, or if it goes to trial, it probably will end up being. Why not just make a call here? [¶] It really isn’t enough in my opinion. I just don’t see it. It’s quantity.”
As noted above, the People subsequently reinstated the possession for sale charge in the information, utilizing the procedure permitted by section 739. Defendant moved to dismiss the possession for sale charge under section 995, contending the magistrate had made factual findings as to the credibility of the People’s expert that bound the court.
The court disagreed with defendant’s premise that the magistrate had made binding credibility determinations: “[T]hat’s not what happened according to my reading of the preliminary hearing transcript.” “The judge said the expert was credible, but the evidence was insufficient to adopt the expert opinion regarding possession for sale. He did not make a factual finding, in my view....” Nonetheless, the court concluded it was bound by the magistrate’s sufficiency finding and granted the ...