Ortega v. Superior Court of Contra Costa Cnty.

253 Cal.Rptr.3d 86

40 Cal.App.5th 290

Daniel ORTEGA, Petitioner,

v.The SUPERIOR COURT of Contra Costa County, Respondent;

The People, Real Party in Interest.

A156464

Court of Appeal, First District, Division 5, California.

Filed September 24, 2019

Martinez Law Office, Martin James Martinez, Napa; Duane Morris, Michael Louis Fox, San Francisco; Elizabeth K. Barker, Martinez, and Zachary Nathan Linowitz, Deputy Public Defenders for Petitioner and Appellant.

No appearance for Respondent.

Xavier Becerra, Attorney General; Gerald A. Engler and Jeffrey M. Laurence, Assistant Attorneys General; Eric D. Share and Elizabeth W. Hereford, Deputy Attorneys General for Real Party in Interest.

NEEDHAM, J.

Daniel Ortega (petitioner) seeks a writ of prohibition from an order denying his motion to set aside the murder count in the indictment filed against him and two co-defendants. ( Pen. Code, § 995.)¹ He contends he was indicted on less than probable cause because the grand jury heard evidence and received instructions on two theories of murder that were subsequently invalidated under Senate Bill 1437. (Stats. 2018, ch. 1015, §§ 1–3.) We conclude that because the evidence and instructions supported petitioner's indictment on a still-valid theory of murder, the motion under section 995 was properly denied.

I. BACKGROUND

As relevant here, the evidence presented to the grand jury was as follows:

On the night of November 11–12, 2016, petitioner went with Dena Herrera to the Capri Club bar in El Sobrante, driving petitioner's car. Also present in the bar were co-defendants Daniel Porter-Kelly and Ray Gonzalez Simons, both of whom petitioner knew. Surveillance cameras showed that Simons told petitioner something to the effect of, "Hey, you know what? I just bought a little-ass pistol and I am going to put (unintelligible) in this mother fucker." Later, victim William Sims walked into the bar.

After the bartender announced last call, petitioner went out the back door of the bar to a patio with Simons and Herrera. Sims and Porter-Kelly remained inside, and when Sims hugged a woman in the bar, Porter-Kelly said, "Fuck that nigger."² He also said, "That nigger is trippin' " and "Oh, he's pimpin.' " Porter-Kelly left through the back door and Sims followed.

Herrera began talking to Sims, with whom she had had a friendly conversation in the bar, and Porter-Kelly walked over to them. Sims extended his hand for Porter-Kelly to shake, but Porter-Kelly gave him a dirty look and refused. Petitioner walked over and reluctantly shook Sims's hand at Herrera's insistence. Simons approached and asked Sims if he wanted to buy some cocaine, to which Sims replied that he only had one dollar. Simons told him they would see what they could do and all four men walked to a different area of the patio.

Petitioner dropped his cell phone and punched Sims in the face.³ Sims was knocked to the ground and Herrera saw petitioner, Porter-Kelly and Simons kick and punch him all over. Herrera tried to stop the beating, but petitioner told her not to interfere. She then tried to leave before the beating was over, by driving away in petitioner's car.

Herrera started the car and started backing slowly down the driveway next to the bar. Petitioner ran up to the car, sat down in the front passenger seat, and said, "Bitch, drive." Simons then came up to the car with a wallet in his hands and said, "There's nothing in here but a dollar and some swipers" (meaning credit cards). Petitioner told him he needed to get rid of the wallet and Simons entered the car and sat in the back passenger side seat.

Herrera finished backing the car down the driveway and when she pulled into the street in front of the bar, Sims ran up and put his hands on the car. He yelled something but Herrera could not recall what he said. Simons fired two shots. Herrera drove away and petitioner told her, "I know you are going to snitch, bitch." Simons said she wouldn't tell because they knew where her family lived.

Sims was fatally shot in the head. The injuries from the beating he received at the hands of petitioner and co-defendants were consistent with a "pistol-whipping," and were severe enough that had he not been shot, they could have been fatal. Sims may also have survived the beating had he not been shot—the coroner who conducted the autopsy could not tell.

Based on this evidence, the prosecutor gave written instructions to the grand jury on aiding and abetting, aiding and abetting under a natural and probable consequences theory, and the felony murder rule, as well as the general principles of homicide, murder with malice aforethought, robbery, and assault with force likely to produce great bodily injury. He also read these instructions verbally.

On April 17, 2017, the grand jury returned an indictment accusing petitioner of murder, second degree robbery and assault by means of force likely to produce great bodily injury. (§§ 187, subd. (a), 211, 245, subd. (a)(4).) The grand jury rejected a hate crime allegation (§ 422.75, subd. (b)) and special circumstance allegations that the victim had been killed because of his race and pursuant to a felony murder. (§ 190.2, subds. (a)(16), (a)(17).) Co-defendant Porter-Kelly was indicted on the same charges. Co-defendant Simons was also indicted on the same charges, and was additionally indicted for one count of possession of a firearm by a felon (§ 29800, subdivision (a)(1)), for firearm enhancements in connection with the murder and robbery counts (§ 12022.53, subds. (b)–(e)), for a felony-murder (robbery) special circumstance in connection with the murder count (§ 190.2, subdivision (a)(17)), and for suffering a prior serious and/or violent felony conviction within the meaning of the three strikes law and the prior serious felony enhancement provision (§ 667, subd. (a)(1), (d)–(e), 1170.12).

On September 30, 2018, the governor signed Senate Bill 1437, effective January 1, 2019. Petitioner moved to set aside the indictment on multiple grounds, including that he had been indicted under the natural and probable consequences doctrine or the felony-murder rule, which were now-invalid theories of murder absent certain findings not made by the grand jury. ( § 995.)

The court denied the motion, finding the evidence sufficient to entertain a strong suspicion that petitioner specifically intended to aid in the murder of Sims by coordinating ahead of time with Simons, by participating in the potentially fatal beating, and by assisting Simons in fleeing after the fatal shot was fired but before Sims actually died. The court noted the grand jury had received instructions on direct aiding and abetting. Petitioner timely sought a writ of prohibition under section 999a and has demonstrated the availability of review under section 1510.

II. DISCUSSION

A. General Principles and Standard of Review

The prosecution may initiate felony criminal charges against a defendant either by filing a complaint before a magistrate and holding a preliminary hearing or by securing a grand jury indictment. ( Cal. Const., art. I, § 14 ; § 737–740, 889, 939.8, 949.) Both types of proceedings are designed to determine whether sufficient evidence has been presented to hold a defendant to answer on a criminal complaint. ( Stark v. Superior Court (2011) 52 Cal.4th 368, 406, 128 Cal.Rptr.3d 611, 257 P.3d 41 ( Stark ); Cummiskey v. Superior Court (1992) 3 Cal.4th 1018, 1027, 13 Cal.Rptr.2d 551, 839 P.2d 1059 ( Cummiskey ).)

The standard of proof is probable cause, which is a less stringent standard than the burden of proof beyond a reasonable doubt standard at trial. ( Cummiskey at pp. 1027–1029, 13 Cal.Rptr.2d 551, 839 P.2d 1059 ; People v. Casillas (2001) 92 Cal.App.4th 171, 178, 111 Cal.Rptr.2d 651.) Probable cause means " ‘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....[P]robable cause may exist although there may be some room for doubt.’ " ( Garcia v. Superior Court (2009) 177 Cal.App.4th 803, 818, 99 Cal.Rptr.3d 488, quoting Cummiskey , at p. 1029, 13 Cal.Rptr.2d 551, 839 P.2d 1059.) In assessing the sufficiency of a showing of probable case, we ask whether " ‘a public offense has been committed, and there is sufficient cause to believe the defendant guilty thereof.’ " ( Cummiskey , at pp. 1026–1027, 13 Cal.Rptr.2d 551, 839 P.2d 1059.)

When the prosecution elects to proceed by indictment, "it is the grand jury's function to determine whether probable cause exists to accuse a defendant of a particular crime. In other words, the grand jury serves as part of the charging process of a criminal procedure, not the adjudicative process that is the province of the courts or trial jury." ( Cummiskey , supra , 3 Cal.4th at p. 1026, 13 Cal.Rptr.2d 551, 839 P.2d 1059.) "[A] defendant has a due process right not to be indicted in the absence of a determination of probable cause by a grand jury acting independently and impartially in its protective role." ( People v. Superior Court (Mouchaourab) (2000) 78 Cal.App.4th 403, 424, 92 Cal.Rptr.2d 829 ; see also People v. Backus (1979) 23 Cal.3d 360, 392–393, 152 Cal.Rptr. 710, 590 P.2d 837.)

Section 995, subdivision (a)(1) permits the court to set aside an indictment "(A) Where it is not found, endorsed, and presented as prescribed in this code" or "(B) ... the defendant has been indicted without reasonable or probable case." Although the prosecution does not have the duty to instruct a grand jury on the law in the same manner that a trial judge must instruct a petit jury ( Cummiskey , supra , 3 Cal.4th at p. 1034, 13 Cal.Rptr.2d 551, 839 P.2d 1059 ), a claim that the grand jury was misinstructed "may be tantamount to a claim that, as instructed, the [grand] jury may have indicted [the defendant] on less than reasonable or probable cause." ( Id. at p. 1022, fn. 1, 13 Cal.Rptr.2d 551, 839 P.2d 1059 ; People v. Gnass (2002) 101 Cal.App.4th 1271, 1310...