BAMATTRE-MANOUKIAN, J. —
A grand jury indicted petitioner Richard Torres Arteaga on charges of participating in a criminal street gang (Pen. Code, § 186.22, subd. (a))
The Attorney General contends we should deny the petition because petitioner did not file his section 995 motion within 60 days of his arraignment, which is a prerequisite for pretrial writ review under section 1510. We conclude that under the circumstances of this case, petitioner may seek pretrial writ review of the trial court's order despite his failure to file his section 995 motion within 60 days of his arraignment, because he had "no opportunity" to file the motion earlier and was "unaware of the issue." (§ 1510.)
In his writ petition, petitioner contends uncorroborated accomplice testimony is insufficient to support a grand jury indictment. We conclude that uncorroborated accomplice testimony can be the basis for a grand jury indictment. We will therefore deny the petition for writ of mandate and/or prohibition.
Campbell Police Sergeant Dan Livingston was the first witness to testify before the grand jury. After describing his training and experience, he was presented as an expert in the following areas: gangs (specifically, the Nuestra Familia), firearms, controlled substances, and sales of controlled substances.
The Nuestra Familia originated as a prison gang, in an attempt to protect its members from the Mexican Mafia. Today, the Nuestra Familia operates both inside and outside of prisons. Most Nuestra Familia members are from Northern California. In order to become an actual Nuestra Familia member, a person must be sponsored and prove his or her dedication to the organization, primarily by committing assaults in jails and prisons or on the streets. Members are governed by a constitution, and they must follow orders, even orders to murder their own family members.
Nuestra Raza is the organization of gang members underneath the Nuestra Familia. Nuestra Raza members are leaders of the Norteños, the street gang that is aligned with Nuestra Familia. Norteños identify with the number 14 and the color red. Norteños are governed by a code of conduct called the "14
On the street, the Nuestra Familia has an organized structure. There is typically a regiment commander and a second in command, who may also be known as a regiment security, a second, or a reserve. There may be a squad leader. There are also regiment members and associates.
The primary activities of the Nuestra Familia are murder, assault with a deadly weapon or firearm, and sales of controlled substances. Gang members may also engage in extortion, witness intimidation, kidnapping, illegal firearms possession, arson, threats, grand thefts, robbery, burglary, forgery, identity theft, and counterfeiting.
A "kite" is a piece of paper with tiny writing, which is a form of communication used by members of the Nuestra Familia organization who are in custody. Some kites are written in a "dead Aztec language" or in code, and others have "ghost writing," which is when a person uses a sharpened staple to etch the paper, and the recipient uses graphite or a pencil to reveal the writing.
On November 20, 2012, a kite was located inside a purse belonging to the mother of codefendant Leonard Rodriguez. Livingston believed the kite had been written by codefendant Robert Pacheco.
In the kite, Pacheco wrote that his family had been "disrespected by an individual named Flaco," which is petitioner's nickname. Pacheco described how Flaco had tried to intimidate Pacheco's family at the request of Pacheco's "baby mom," who was supposed to have given his family money from methamphetamine sales. Pacheco claimed that Flaco had also been spreading rumors that Pacheco was snitching, and that Flaco was telling people he was "a big homie," meaning a member of Nuestra Raza or Nuestra Familia.
Jesus Cervantes (also known as Jesse Cervantes) testified under an immunity agreement. He had pending charges of conspiracy to distribute methamphetamine, participation in a criminal street gang, and attempted murder. He had decided to cooperate prior to his preliminary hearing.
Cervantes had been a driver for Nuestra Familia member Angel Martinez. As a driver for Martinez, he had delivered methamphetamine and helped to
Cervantes identified a picture of petitioner and confirmed that petitioner went by the name Flaco. He described petitioner as "[o]ne of [the] people that was selling for [Martinez]." Cervantes had seen Martinez give petitioner methamphetamine to sell about five times. Petitioner had gotten into debt with Martinez, and petitioner had given Martinez a .38-caliber firearm as a downpayment.
During the grand jury proceedings, the following instruction regarding accomplice testimony was given:
A 77-count grand jury indictment was filed on May 31, 2013, against 48 defendants, including petitioner. In count 1, all defendants were charged with participating in a criminal street gang. (§ 186.22, subd. (a).) In count 2, petitioner and 33 other defendants were charged with conspiracy to sell methamphetamine. (§ 182, subd. (a)(1); Health & Saf. Code, § 11379.) As to
Petitioner was arraigned on the indictment on September 25, 2013. Counsel was appointed to represent petitioner on October 2, 2013. Discovery was provided to counsel on October 17, 2013. Counsel thereafter reviewed the 2,370 pages of grand jury transcripts in addition to 1,520 pages of grand jury exhibits, 1,500 pages of discovery documents, plus numerous audio recordings and images. Counsel filed a demurrer to the indictment on December 16, 2013, which was denied on December 31, 2013.
On or about January 6, 2014, petitioner filed a motion to dismiss the indictment pursuant to section 995. He argued that the evidence presented to the grand jury was insufficient to support a finding of probable cause as to count 1 (the substantive gang crime) or the gang allegation, and he argued that both the gang and conspiracy counts should be dismissed because even if there was evidence to support a finding of probable cause, that evidence consisted solely of uncorroborated accomplice testimony.
The People filed opposition to petitioner's motion to dismiss. The People argued that sufficient evidence supported count 1, count 2, and the gang allegation, and that the accomplice testimony requirement applicable to trial proceedings does not apply to preliminary hearings or grand jury proceedings.
A hearing on the motion to dismiss was held on January 22, 2014. After hearing argument from petitioner and the People, the trial court took the matter under submission. On February 10, 2014, the trial court issued a minute order denying petitioner's motion.
On February 24, 2014, petitioner filed a petition for writ of mandate and/or prohibition in this court. We summarily denied the petition on March 6, 2014. Petitioner thereafter filed a petition for review in the California Supreme Court. On May 14, 2014, the Supreme Court granted the petition and transferred the matter back to this court with directions to vacate our previous
We issued the order to show cause on May 23, 2014. We provided the People (real party in interest) the opportunity to file a return in opposition to the writ, and we gave petitioner the opportunity to file a reply to the return. We directed petitioner to augment the record with the entire transcript of the grand jury proceedings, and we directed the parties to address not only the merits of the petition, but whether pretrial review is appropriate in light of the time requirements of section 1510.
In their return, the People contend that pretrial writ review is not available because petitioner did not file his section 995 motion within 60 days of his arraignment, as required by section 1510.
Section 1510 provides: "The denial of a motion made pursuant to Section 995 or 1538.5 may be reviewed prior to trial only if the motion was made by the defendant in the trial court not later than 45 days following defendant's arraignment on the complaint if a misdemeanor, or 60 days following defendant's arraignment on the information or indictment if a felony, unless within these time limits the defendant was unaware of the issue or had no opportunity to raise the issue."
The "no opportunity" exception contained in section 1510 can apply where the transcript of the preliminary hearing or grand jury proceedings is particularly lengthy or where there has been a delay in providing the transcript to the petitioner. For instance, in Ghent, the petitioner was a criminal defendant who, following a preliminary hearing, was charged with murder with special
Both exceptions to section 1510's 60-day rule applied in the related cases of Fleming, supra, 191 Cal.App.4th 73 and McGill v. Superior Court (2011) 195 Cal.App.4th 1454 [128 Cal.Rptr.3d 120] (McGill). The two cases arose out of a grand jury investigation into misuse of public funds by a school superintendent.
The McGill court applied similar reasoning in holding that section 1510 did not preclude the petitioner from filing a section 995 motion more than 60 days after arraignment on an indictment. There, the court noted that the "basic timeframes" were "roughly the same as in Fleming," but that in addition, the McGill petitioner had been charged with perjury, which was an "extremely fact intensive" crime, particularly since the indictment had not specified which part of her grand jury testimony was false. (McGill, supra, 195 Cal.App.4th at p. 1513.) Noting that the petitioner was represented by a solo practitioner, the McGill court found there was "no way" that counsel "could
In the instant case, petitioner was arraigned on September 25, 2013, and he filed his section 995 motion on or about January 6, 2014, a little over three months (103 days) later. Petitioner had not been appointed counsel until one week after his arraignment, on October 2, 2013. Discovery was not provided to counsel until two weeks after her appointment, on October 17, 2013. After receiving the discovery, petitioner's counsel reviewed the 2,370 pages of grand jury transcripts (contained in 13 volumes) in addition to 1,520 pages of grand jury exhibits, 1,500 pages of discovery documents, plus numerous audio recordings and images. The record here is even larger than the record deemed "voluminous" in Fleming, supra, 191 Cal.App.4th at page 104 — at 13 volumes of transcripts, it is more than twice the size of the Fleming record. As in Fleming, the transcripts and exhibits "would necessarily have had to be read and digested by [petitioner's] counsel to present a section 995 motion." (Id. at pp. 104-105.) In light of the voluminous record and the fact there was a delay of several weeks in providing the discovery to petitioner's counsel, "it is unlikely all the reading could have been completed, much less a proper motion prepared, in 60 days. [Citation.]" (Id. at p. 105; see McGill, supra, 195 Cal.App.4th at p. 1514; Ghent, supra, 90 Cal.App.3d at p. 952.)
Moreover, the issue raised by petitioner's section 995 motion was "extremely fact intensive" and essentially required a "line-by-line review" of the grand jury testimony. (McGill, supra, 195 Cal.App.4th at pp. 1513, 1514.) Counsel would have had to read all of the grand jury testimony in order to determine whether the testimony about petitioner was corroborated. Additionally, there is no published case law concerning whether, under the current statutory scheme, uncorroborated accomplice testimony may support a grand jury indictment. Thus, in order to determine if the legal issue was arguably meritorious, counsel would have had to do extensive legal research. (See id. at p. 1514.)
Under the circumstances of this case, we conclude that the "no opportunity" and "unaware of the issue" exceptions to section 1510 should apply, so petitioner may seek pretrial writ review of the trial court's order denying his section 995 motion despite his failure to file the motion within 60 days of his arraignment. We proceed to consider the merits of that motion.
Petitioner contends the only evidence supporting his indictment is the testimony of Cervantes and the kite written by Pacheco. He contends both Cervantes and Pacheco were accomplices and that no independent evidence corroborates Cervantes's testimony or the contents of the kite with respect to petitioner's involvement in the criminal offenses. Petitioner claims uncorroborated accomplice testimony cannot support a grand jury indictment.
Petitioner first presents a statutory construction argument, claiming that the accomplice corroboration requirement of section 1111 is incorporated into the requirements for grand jury proceedings by virtue of section 939.8.
Section 1111 provides: "A conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. [¶] An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given."
Section 939.8 provides: "The grand jury shall find an indictment when all the evidence before it, taken together, if unexplained or uncontradicted, would, in its judgment, warrant a conviction by a trial jury."
Petitioner claims that, read together, these two statutes provide that a grand jury indictment cannot be based on uncorroborated accomplice testimony. He contends, "[B]asing an indictment on uncorroborated accomplice testimony would violate Penal Code section 939.8 because Penal Code section 1111 provides that such evidence is insufficient to warrant a conviction by a trial jury."
The California Supreme Court has made it clear that the phrase "warrant a conviction by a trial jury" (§ 939.8) does not mean a grand jury must receive evidence that would actually prove a defendant's guilt beyond a reasonable doubt. "By including the phrase `warrant a conviction by a trial jury,' the Legislature did not intend to equate a grand jury proceeding with a trial ...." (Cummiskey v. Superior Court (1992) 3 Cal.4th 1018, 1026 [13 Cal.Rptr.2d 551, 839 P.2d 1059] (Cummiskey).) In Cummiskey, the Supreme Court considered the standard of proof applicable to grand jury proceedings. The grand jury had been instructed that it should find an indictment if the evidence provided "`sufficient cause'" to believe that the defendant had committed a public offense. (Id. at p. 1025.) The instruction had defined
The California Supreme Court rejected the defendant's claim that section 939.8 provided a higher standard of proof for grand jury proceedings. "By including the phrase `warrant a conviction by a trial jury,' the Legislature did not intend to equate a grand jury proceeding with a trial ...." (Cummiskey, supra, 3 Cal.4th at p. 1026.) The court noted that the term "warrant" can mean "`justification or reasonable grounds for some act, course, statement, or belief....'" (Ibid.) The court further noted that an indictment is "`an accusation in writing, presented by the grand jury to a competent court, charging a person with a public offense.' Thus, under the statutory scheme, 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 criminal procedure, not the adjudicative process that is the province of the courts or trial jury." (Ibid.)
Although Cummiskey did not involve the precise issue presented here, it is instructive because it confirms that the phrase "warrant a conviction by a trial jury" (§ 939.8) does not import into grand jury proceedings the standards of proof applicable to a jury trial. Thus, even though uncorroborated accomplice testimony cannot provide the basis for a conviction at trial, it may "warrant" — that is, provide "`justification or reasonable grounds for'" the grand jury to return an indictment. (Cummiskey, supra, 3 Cal.4th at p. 1026.)
The California Supreme Court has explained that corroboration is required for accomplice testimony at trial because "such testimony has been legislatively determined never to be sufficiently trustworthy to establish guilt beyond a reasonable doubt unless corroborated." (Tewksbury, supra, 15 Cal.3d at p. 967, italics added.) Thus, although uncorroborated accomplice testimony is categorically insufficient to support a conviction, that rationale does not render such testimony insufficient to support the finding of probable cause necessary for a grand jury indictment.
Our conclusion is buttressed by a line of early California cases including Greenberg v. Superior Court (1942) 19 Cal.2d 319 [121 P.2d 713] (Greenberg). In Greenberg, which predated the enactment of section 995, the California Supreme Court held that an indictment was subject to review for "some evidence" to support it.
In reaching its conclusion regarding the availability of writ review in grand jury proceedings, the Greenberg court discussed In re Kennedy (1904) 144 Cal. 634 [78 P. 34] (Kennedy), in which "a defendant petitioned for a writ of habeas corpus on the ground that the uncorroborated testimony of an accomplice, which constituted the evidence presented to the grand jury, was insufficient to justify an indictment." (Greenberg, supra, 19 Cal.2d at p. 322.)
As the Attorney General points out, subsequent cases have cited Greenberg for the proposition that uncorroborated accomplice testimony is sufficient to support a grand jury indictment. For instance, in Jensen v. Superior Court (1950) 96 Cal.App.2d 112 [214 P.2d 828] (Jensen), the court cited Greenberg for the proposition that in determining whether there was "some evidence" to support the indictment, the court could rely on uncorroborated accomplice testimony "if it supplied some evidence of guilt, although such testimony would not by itself justify a conviction. [Citations.]" (Id. at pp. 114-115; see Stern v. Superior Court (1947) 78 Cal.App.2d 9, 17 [177 P.2d 308] (Stern) [citing Greenberg in stating that the uncorroborated testimony of accomplices "is sufficient to support an indictment"]; Abbott v. Superior Court (1947) 78 Cal.App.2d 19, 21 [177 P.2d 317] (Abbott) [citing Stern in rejecting the argument "that the uncorroborated testimony of an accomplice will not support an indictment"].)
Petitioner contends that Greenberg and related authority are not controlling. Petitioner argues that Kennedy, which was approved in Greenberg, is not relevant because under the law at the time, an indictment could not be challenged "on the ground that there was not sufficient evidence to support it." (Kennedy, supra, 144 Cal. at p. 637.) Petitioner further notes that Greenberg itself did not involve the question of whether uncorroborated accomplice testimony can support a grand jury indictment. Additionally, petitioner argues that the cases decided after Greenberg (i.e., Jensen, Stern, and Abbott) only addressed the issue in dicta.
Petitioner's reliance on Mott v. Superior Court (1964) 226 Cal.App.2d 617 [38 Cal.Rptr. 247] is similarly unpersuasive. That case involved inadmissible evidence presented to the grand jury: an involuntary confession, which the court described as not "legally competent." (Id. at p. 618.) As discussed above, accomplice testimony is admissible at trial, even if uncorroborated (Tewksbury, supra, 15 Cal.3d at p. 967) and thus, when relevant, it is legally competent evidence (Coburn, supra, 83 Cal.App.3d at p. 809).
Petitioner acknowledges that uncorroborated accomplice testimony admitted at a preliminary hearing can be the basis of a magistrate's order holding a defendant to answer. (See People v. McRae (1947) 31 Cal.2d 184, 186 [187 P.2d 741] [accomplice testimony is "`sufficient to make it appear that there is a "probability"'" that a defendant is guilty of the offense charged].) Petitioner contends, however, that there are differences between preliminary hearings and grand jury proceedings that justify different rules regarding accomplice testimony.
According to petitioner, it is necessary to have corroboration of accomplice testimony at grand jury proceedings in order to provide a "safeguard[]" ensuring that probable cause determinations rest on reliable evidence — i.e., to make sure that grand juries are suspect and critical of accomplice testimony. However, that safeguard can be provided by an appropriate instruction to the grand jury, like the one given to the grand jury in this case, which provided in part: "Any testimony of an accomplice that tends to incriminate the defendant should be viewed with caution."
Petitioner also contends that a 1943 New York case, People v. Nitzberg (1943) 289 N.Y. 523 [47 N.E.2d 37] (Nitzberg), is "directly on point" and
Petitioner alternatively contends that even if corroboration of accomplice testimony is not required, "the evidence presented against [him] is so inherently unreliable and incompetent that it cannot support a probable cause finding." He contends that because such evidence forms the basis for the indictment, his constitutional rights to due process and a fair trial have been violated.
Petitioner does not identify anything about the accomplice testimony in this case rendering it particularly unreliable. Rather, to support this claim, petitioner relies on Whitman v. Superior Court (1991) 54 Cal.3d 1063 [2 Cal.Rptr.2d 160, 820 P.2d 262] (Whitman), and Miranda, supra, 23 Cal.4th 340, both of which addressed issues concerning preliminary hearings, not grand jury proceedings.
In Whitman, the court held that although hearsay is admissible at a preliminary hearing, a finding of probable cause may not be "based on the testimony of a noninvestigating officer or `reader' merely reciting the police report of an investigating officer." (Whitman, supra, 54 Cal.3d at p. 1072.) The court noted that if multiple hearsay was permitted, "substantial additional objections to the reliability of the evidence might arise ...." (Id. at p. 1074.)
In Miranda, an investigating officer related the confession of a nontestifying codefendant at the defendant's preliminary hearing. (Miranda, supra, 23 Cal.4th at p. 342.) The defendant contended that the officer's testimony was inadmissible because it was "not `ordinary' hearsay such as was involved in Whitman, but `presumptive[ly] unreliab[le]' hearsay because of [the codefendant's] status as a confessed accomplice and his probable motivation to implicate defendant and exonerate himself." (Id. at pp. 349-350.) The Miranda court rejected this claim, observing that "despite its presumed unreliability, such evidence represents an accusation of criminal conduct made to a law enforcement officer and ordinarily warranting consideration in preliminary proceedings designed to determine whether formal charges should be brought." (Id. at p. 350.) The court specified that while its "holding may allow admission at the preliminary examination of qualified officer testimony regarding an accomplice's confession," it was left to "the magistrate in each case to decide the weight to be given to that testimony, based on
According to petitioner, Whitman and Miranda "provide an excellent constitutional benchmark for what evidence is sufficiently reliable to establish probable cause." However, neither Whitman nor Miranda held that uncorroborated accomplice testimony is so unreliable as to violate due process when it is used to support a finding of probable cause, and we find nothing in those cases supporting such a proposition. In particular, we find it significant that Miranda upheld not only the use of an accomplice's statement to support a finding of probable cause at a preliminary hearing, but the admission of such statements through the testimony of police officers. Further, that court rejected the claim that due process would be violated if an accomplice's confession, while "inherently untrustworthy hearsay," could establish probable cause at the preliminary examination. (Miranda, supra, 23 Cal.4th at p. 353.)
The petition for writ of mandate and/or prohibition is denied.
Premo, Acting P. J., and Márquez, J., concurred.
