Filed 3/29/16 P. v. Young CA1/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,
         Plaintiff and Appellant,
                                                                     A146206
v.
JOSEPH YOUNG,                                                        (San Francisco County
                                                                     Super. Ct. No. 223052)
         Defendant and Respondent.



BY THE COURT:
         It is ordered that the opinion filed herein on March 9, 2016, be modified as
follows:
         1. On page 24, at the end of the first sentence in the first full paragraph, after the
phrase “nothing remotely like this on the video”, add the following footnote:
         “Although the arguments and factual statements in the prosecution’s papers
opposing the section 995 motions are not evidence, they provide useful, but obviously not
binding, points of reference for our own independent review of the evidence, which
included intensive scrutiny of the video evidence. That is, what did the prosecution
(who, after all, realleged the murder count pursuant to section 739) believe was in the
video excerpts and what was its import?”
         2. On page 26, in the first sentence of the first paragraph, delete the phrase “the
agreed-upon” and replace it with “a”. It now reads: “to embark on a physical attack”.


                                                             1
       3. On page 27, in the second full paragraph, delete the third full sentence
beginning with “Because we give no credit” and replace it with the following sentences:
“We have examined the entire record for inferences that support the murder charge.
Because we give no credit to the prosecution’s assertions that it was Young’s gun, that he
gave it to York, and that it was in Young’s plain sight on the seventh floor, the evidence
necessary to hold Young to answer for the murder charge depends in large part upon
whether from Young’s split second glance backward to the elevator and what
immediately thereafter transpired, a reasonable inference can be drawn that defendant
Young, with knowledge of York’s criminal purpose, aided and abetted York’s criminal
assault of Beltran.”
       The petition for rehearing is denied. This modification does not change the
judgment.



Dated:___________________                               _________________________
                                                        Kline, P.J.




                                             2
Filed 3/9/16 P. v. Young CA1/2 (unmodified version)
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,
         Plaintiff and Appellant,
                                                                     A146206
v.
JOSEPH YOUNG,                                                        (San Francisco County
                                                                     Super. Ct. No. 223052)
         Defendant and Respondent.


         The People have appealed the trial court’s order dismissing a charge of murder
from a criminal information. The appeal raises two issues: Can a trial judge reconsider
his own order denying a motion to dismiss an information pursuant to Penal Code section
9951 when the judge acknowledges that when he initially ruled on the section 995
motion, he had not reviewed the video evidence that is essential to determining whether
there is probable cause to hold a defendant to answer? And if such reconsideration is
proper, did the trial judge then err in concluding (as did the magistrate who heard the
preliminary hearing) that there was insufficient cause to hold the defendant to answer to
the murder charge?
         This matter first came to our attention as a petition for writ of mandate and
application for stay filed by the People because defendant Joseph Young’s trial on the
remaining counts of the information was then scheduled for September 18, 2015. We
issued a temporary stay of the trial to allow further briefing. After reviewing the briefing,


         1
             All further undesignated statutory references are to the Penal Code.


                                                             1
we declined to resolve the matter by writ and denied the writ, but expedited the People’s
appeal of the identical issues, which had already been fully briefed.2 We now hold that
the trial judge did not err in reconsidering his own order denying the section 995 motion
when it became apparent to him that he had made a ruling without actually having
reviewed key evidence, and that he did not err when, upon reconsideration, he dismissed
the murder charge against defendant Young.
                 FACTUAL AND PROCEDURAL BACKGROUND
       This appeal arises out of an incident in the early morning hours of July 22, 2014,
at the Henry Hotel in San Francisco. The San Francisco District Attorney filed a
consolidated felony complaint charging defendant Joseph Young and codefendant Darius
York (not a party to this appeal) with, among other charges, the murder and assault of
Daniel Beltran, and the assault of Roger Alarcon. York was alleged to be the shooter.3




       2
         The trial court’s order dismissing the murder charge is an appealable order.
(§ 1238, subd. (a)(1).) In our order denying the writ, we stated that the writ petition, and
briefs received in connection with the writ petition, would be treated as the briefs on
appeal, and that the record already submitted would be treated as the record on appeal,
subject to any supplementation by the parties.
       3
         The complete list of charges against Young at the time of the preliminary hearing
were count 1, murder of Beltran; count 2, assault with force likely to cause great bodily
injury against Beltran; count 3, assault with a deadly weapon, not a firearm, against
Alarcon; count 4, assault with a semiautomatic firearm against Alarcon; count 5, assault
with force likely to cause great bodily injury against Alarcon; count 8, maintenance of a
place for selling or using a controlled substance; count 9, utilizing a fortified house in
violation of Health and Safety Code section 11366.6; and count 11, attempted destroying
evidence. As to the murder count, it was alleged that York (not Young) personally and
intentionally discharged a firearm, to wit, a semiautomatic handgun, in violation of
section 12022.53, subdivision (d). As to Young, it was alleged that he was armed with a
firearm pursuant to section 12022, subdivision (a)(1). There was no evidence of any
other firearm except the semiautomatic handgun that York was held to have discharged
and which formed the basis for the original holding order of murder as to York.
       The complaint also alleged enhancements and prior felony convictions that are not
relevant here.


                                              2
         Preliminary Hearing
         Judge Jerome Benson, a very experienced retired superior court judge, presided
over the preliminary hearing, which lasted over the course of three days. The key piece
of evidence at the preliminary hearing was video footage from the Henry Hotel taken on
the morning of the incident, from around 4:30 a.m. until approximately 6:30 a.m. It was
stipulated for purposes of the preliminary hearing that the video clips from the various
surveillance cameras in and around the Henry Hotel were business records under
Evidence Code section 1270, and that the court could view them without further
foundation as evidence at the preliminary hearing. A substantial portion of the
preliminary hearing consisted of showing the video evidence, which was primarily shown
in connection with the testimony of Jon Kasper, a sergeant in the San Francisco Police
Department, who is assigned to the homicide detail. Kasper was familiar with the lay-out
of the Henry Hotel, and had reviewed and was familiar with the videos. Kasper
identified the individuals in the video (including Young, York, the alleged victims and
others), and from time to time provided a narration that was essential to understanding
what was being shown on the screen. The video evidence was played painstakingly, with
the same events sometimes shown from different angles taken by different cameras in
and outside the hotel. The video clips were also shown in connection with the testimony
of the People’s other witness, Gary Owens, the Henry Hotel desk clerk the morning of
the incident, who was an eyewitness to the events. Owens testified under a grant of
immunity. We summarize the evidence that pertains to the murder charge that is at issue
here.4
         The video clips showed two individuals, identified as Beltran and Alarcon, who
were attempting to gain entrance to a hotel room upstairs in the Henry Hotel. They first
had to get inside the locked and gated inner lobby of the Henry Hotel. That is where the

         4
         The section 995 motion also urged that Young not be held to answer on any of
the other charges against him relating to alleged victim Beltran, as well as the two assault
charges against alleged victim Alarcon. This part of the motion was denied, but it is not
before us on the People’s appeal. We consider only the murder charge.


                                             3
trouble started. The Henry Hotel was frequently used for illegal drug transactions, and it
was hotel policy that anyone seeking entrance to the hotel between the hours of 8:00 p.m.
and 9:00 a.m. had to pay $10 and show identification. Owens was the desk clerk at the
Henry Hotel on the morning in question, and he was sitting in the desk clerk’s office
when the events started to unfold. When Owens told Beltran and Alarcon that each
would have to pay $10 and show him their identification to gain entry to an upstairs
room, per hotel policy, they balked. Angry arguments ensued between Beltran and
Alarcon, on the one hand, and Owens. According to Owens, Beltran (referring to Owens)
said things like, “ ‘[f]uck that nigger . . . I’m not paying shit’ ” and “ ‘you need to call the
fucking police, then, because I’m not giving you shit but an ass kicking.’ ”5 Beltran was
drunk and combative; according to statements later made by Beltran’s uncle to Sergeant
Kasper, Beltran had already been drinking heavily on the morning of the incident.6
       Defendant Young worked as a desk clerk and security guard at the hotel, although
he was not on duty at the time Beltran and Alarcon arrived. Young lived at the hotel, not
as a guest but because he worked there; according to Owens, Young lived somewhere on
the third floor. York was living at the hotel, too, in anticipation of being hired as a
security guard. Owens, York and Young were personally close. Owens said York and
defendant were like brothers; he had known them both since they were young and they
referred to him as “uncle.”
       The Henry Hotel is on Sixth Street. To get into the hotel from the sidewalk, there
is a door and an iron gate, which lead into the outer hotel lobby. To get into the inner
lobby, there is another locked iron gate. A person who wishes to gain access to the inner
lobby of the hotel (and upstairs into the hotel) must be “buzzed in” through this second
iron gate. At the back of the inner lobby is a stairwell and an elevator. A person in the
       5
        Owens attributed these statements to “the shorter guy” or the “little bitty guy,”
who was identified on the video as Beltran. He identified Alarcon as the taller person
with the fisherman’s hat.
       6
        It was stipulated for purposes of the preliminary hearing that Alarcon and Beltran
were under the influence of intoxicating substances, either alcohol and/or other controlled
substances, at the time of the events at issue in the case.


                                               4
outer lobby can see people coming out of the elevator or coming down the stairs. The
desk clerk’s office has a glass window that looks out on the outer lobby. The desk clerk’s
office has an array of security monitors that display camera views of the hotel, including
the interior of the elevator.
       The evidence of what happened on the morning in question is primarily based on
the soundless videos, which were taken from cameras placed in the interior lobby area of
the hotel, the elevator, the seventh floor area, and the outside of the hotel itself; Owens’s
immunized testimony; and the testimony of Sergeant Kasper.
       Beltran and Alarcon came to the Henry Hotel together; it was later discovered that
they were there to buy cocaine.7 They argued with Owens about getting access to the
hotel. The argument got heated, with physical threats against Owens and racial slurs.8
According to Owens, Beltran said he was “the Mexican Mafia and that I would be sorry
if I take this any farther, because he would have my ass.” At one point, Owens went back
into the desk clerk’s office and feigned a call to the police. Owens saw on the security
monitors that York was coming down the elevator. Owens walked over to the elevator to
meet him. Owens gestured to Beltran and Alarcon, and told York that he was “having a
problem with . . . these two guys here that won’t leave.”
       Video clips show that York immediately reentered the elevator, exited on the
seventh floor, and went running into room 703. (This is the same room that, earlier that
morning, York, defendant, and a woman identified as Dizon, were seen entering and
       7
         At the request of York’s counsel and with the agreement of the prosecutor, it was
stipulated that if Officer Vizcay of the San Francisco Police Department had been called
as a witness, he would have testified to the contents of his police report, which the court
was permitted to read and consider as evidence. The report stated in summary, according
to Judge Benson, that on August 18, 2014 (shortly after this incident), Alarcon and a Mr.
Roosevelt got into a dispute about a bag that was laying in the street and in the course of
that, Roosevelt pushed Alarcon, who then lifted his shirt and brandished a black Glock
that was in Alarcon’s waistband. Roosevelt later fled on foot and identified Alarcon.
This incident was admitted as a character trait of the victim pursuant to Evidence Code
section 1103.
       8
        When Owens was asked whether Beltran and Alarcon threatened that “they’d
fuck you up” and “said they’d kill you,” Owens answered “yes.”


                                              5
exiting.) Moments later, York ran out of room 703 carrying a gun with an extended
magazine in his hand. Defendant and the woman named Dizon emerged running from
room 703 about 15 seconds after York. Defendant was half dressed, and pulled on a
sweatshirt as he moved down the hall toward the stairs. York went directly to the
elevator, and took it back down to the first floor lobby area. Young ran down the stairs to
the lobby. He got there before York did, spoke to Owens about what was going on, and
began arguing with Beltran. According to Owens, Beltran continued to sound off, telling
defendant, to “get the fuck out of my face.”
       York then arrived downstairs. As York walked out of the elevator, there was a
firearm with an extended magazine visible in his hand. Defendant turned and looked
back toward the elevator as York was walking out of the elevator with the gun.
Defendant and Beltran then physically engaged; defendant pushed Beltran out the door of
the hotel and onto the sidewalk. While this was happening, York approached Alarcon
and began throwing punches at him, with the gun visible in York’s hands.
       The situation was fluid and fast moving. In the midst of these physical struggles,
York’s gun was discharged from inside the hotel and apparently through the iron gate in
the outer hotel doorway, hitting Beltran in the upper chest. The video shows a flash, and,
according to Owens, there was a loud sound in the lobby when the gun was fired. Just
before he heard the loud noise, Owens heard Beltran asking Alarcon to come out of the
building, saying “[f]uck these niggers, man. We’re gonna handle it,” and that they were
“gonna show” them something “right now.” Alarcon did not hear a shot and did not
realize that Beltran had been shot until later when they were out on the street.
       Beltran grabbed his chest and ran down 6th Street in the direction of Minna Street.
Young, York, and a man named Ebony Holt (who was also involved in the altercation
and later charged) went some distance south toward Minna Street, and then turned around
and went back into the lobby of the hotel, where they turned their attention to Alarcon.
Defendant hit Alarcon, and Holt and York joined in; in Owens’ words they started “really
whupping [Alarcon’s] ass.” Owens told his “nephews” (defendant and York) and Holt to
stop, and eventually they did. Alarcon then ran out of the hotel lobby; according to


                                               6
Owens he was “still talking shit” and saying “ ‘[w]e’ll be back motherfuckers’ . . .
[¶] [a]nd, ‘Y’all don’t know who you fucking with.’ ” Shortly thereafter, defendant and
Owens used a mop and bucket to clean blood off the floor in the hotel lobby. And
shortly after that, defendant, York and Dizon are seen on the video camera going back
into room 703.
       Beltran made his way down the street near the area of the Henry Hotel where his
uncle was waiting in a car for him and Alarcon. Beltran died from a gunshot wound to
the chest. Alarcon had a bloody nose; he was uncooperative when he was later
interviewed by the police and claimed not to remember the events accurately. He said he
and Beltran were at the Henry Hotel to buy cocaine.
       Sergeant Kasper and other police officers arrived at the Henry Hotel at about 6:20
a.m. that morning and began investigating. A shell casing was recovered in the outer
lobby inside the Henry Hotel. Owens at first denied that anything had occurred.
       Judge Benson considered the video evidence at the preliminary hearing, and asked
to have excerpts replayed, sometimes in slow motion, or paused so that he could focus on
the testimony or occasionally ask a question. The prosecutor used the video clips in his
closing argument. Judge Benson also reviewed some of the video evidence before
issuing his holding order. In all, 14 different video clips of varying duration were offered
in evidence.
       At the end of the preliminary hearing, Judge Benson held Young to answer only
on counts 4 and 5: assault with a semiautomatic firearm against Roger Alarcon (§ 245,
subd. (b)), and assault with force likely to cause great bodily injury against Roger
Alarcon (§ 245, subd. (a)(4)).9 The remaining charges against Young were all dismissed;


       9
        During the prosecution’s closing argument at the preliminary hearing, which
including replaying portions of the video, Judge Benson commented regarding the assault
against Alarcon (count 5) that “I get the sense that—from looking at the video here that
you’ve sort of severed that off as a separate assault because there’s an interruption with
the shooting and people coming back inside, and then three people seem to go after Mr.
Alarcon at that point. Is that what you’re thinking?” The district attorney replied,
“That’s what Count V encapsulates, your Honor.” Judge Benson eventually stated in

                                             7
most importantly for this appeal, the count alleging that he was liable for the murder of
Beltran. Judge Benson stated that his holdings as to Young were “evidence based,
particularly on the specifics as shown in the video cameras that the—that recorded what
was happening in this event at the gate. The . . . Court’s holdings in this regard or lack of
holdings in this regard is based upon the Court’s inability to find probable cause.” Judge
Benson explictly stated that he was not making any express or implied factual findings
that would restrict the district attorney’s exercise of its discretion under section 739, that
“the Court’s order to hold or discharge on any defendant on any charge is based on the
Court’s legal conclusions regarding the presence or absence of probable cause,” and that
his “findings as to probable cause are based on what I specifically saw in this film and the
precise sequence of events.”
       York was held to answer on several counts, including the murder of Beltran and
the arming allegation.
       The District Attorney Files an Information
       On October 21, 2014, notwithstanding the holding order, the district attorney filed
an information charging both Young and York with the murder of Daniel Beltran (§ 187,
subd. (a); count 1); assault with force likely to cause great bodily injury against Beltran
(§ 245, subd. (a)(4); count 2); assault with force likely to cause great bodily injury against
Roger Alarcon (§ 245, subd. (a)(4); count 3), assault with a semiautomatic firearm
against Beltran (§ 245, subd. (b); count 4); and assault with a semiautomatic firearm
against Alarcon (§ 245, subd. (b); count 5). Young was arraigned on the information on
October 22, 2014.10


holding defendant Young to answer on the assault charges as to Alarcon (but not Beltran
or the murder count) that “it seems pretty clear to the Court that Mr. Young knew about
the gun and he was going along with its use in order to get these two characters out of the
hotel, but I cannot make a finding as to probable cause—a probable cause finding as to
Count I [murder]. It’s easy to do as to the assault charge, but not as far as the [section]
187 [murder].”)
       10
        Subsequently, Young and York’s case was consolidated with that of another
defendant, Ebony Holt, and a consolidated information was filed on November 17, 2014.

                                              8
       Defendant Files a Section 995 Motion Which Is Denied
       On December 24, 2014, Young filed a motion to dismiss the consolidated
information pursuant to section 995 on the ground that there was insufficient evidence to
hold him to answer. Young contended, among other things, that the refiled murder
charge against him must have been premised on an aiding and abetting theory, which he
argued the prosecution had failed to establish. Young also argued that People v. Chun
(2009) 45 Cal.4th 1172 (Chun) supported dismissing the murder charge.11
       The district attorney opposed the section 995 motion, contending that the evidence
was sufficient to show Young aided and abetted the murder of Beltran under the natural
and probable consequences theory of liability. He disputed that Chun, which involved
felony murder, had any applicability to this case.
       Judge Philip Moscone, another very experienced retired superior court judge,
heard the section 995 motion in a brief hearing held on the morning of January 30, 2015.
Towards the end of the morning session, Judge Moscone indicated that he “did not have
the opportunity to see the video, but the research attorney did.” No one commented in
response to this statement by the court. The court took a recess for lunch, and the matter
resumed that afternoon at 2:00 p.m. Judge Moscone commented that he “had a chance to
look over the papers and portions of the transcript during the lunch hour,” and asked if
there was “anything further anyone wants me to consider?” All three defense counsel
said no. Young’s section 995 motion was denied, with little comment by Judge
Moscone: “And I think that—the matter of merger that was discussed in the papers, that
doesn’t arise at this time but it [m]ight arise at the time of discussion with the Court as far
as instructions at that point, depending on what the People’s theory is. [¶] It could be
refiled because it’s transactionally related, and you don’t always have to go on a felony


Young waived instruction and arraignment on the consolidated information on November
17, 2014.
       11
          In Chun, the Supreme Court held that when the underlying felony is assaultive
in nature, the felony merges with the homicide and cannot be the basis of a second degree
felony-murder instruction. (Chun, supra, 45 Cal.4th at p. 1200.)


                                              9
murder basis. There’s a natural probable consequences of the assault, which I think is
sufficient evidence to show.”
       Defendant Files a Motion to Reconsider the Section 995 Motion
       On May 13, 2015, Young filed a motion for reconsideration of his earlier section
995 motion, “based on the general concept of due process and the fact that Judge
Moscone ruled on defendant’s 995 motion without actually viewing the video evidence
introduced at the preliminary hearing which was central to the resolution of the issues
raised in the defendant’s 995 motion.” The motion did not address why Young’s counsel
had not raised this point earlier, since it was apparently known at the time of the section
995 hearing before Judge Moscone that he had not watched the video evidence. Defense
counsel conceded without more that defendant was “time-barred from challenging the
ruling of Judge Moscone by seeking a writ pursuant to Penal Code § 1510.” Section
1510 permits review of the “denial of a motion made pursuant to Section 995 . . . prior to
trial only if the motion was made by the defendant in the trial court not later than . . . 60
days following defendant’s arraignment on the information . . . if a felony, unless within
these time limits the defendant was unaware of the issue or had no opportunity to raise
the issue.” Offering no explanation, defendant apparently conceded that the section 995
motion had not been made within this time frame.12
       The district attorney opposed the motion for reconsideration on the ground that it
was “procedurally incorrect.” He argued that defendant should have filed a writ of
prohibition to the Court of Appeal pursuant to section 999, subdivision (a) within 15 days
of the unfavorable ruling on his section 995 motion, and having failed to do so should not
be permitted to file a motion to reconsider. The district attorney also argued that the
reviewing judge was not required to review all of the evidence in considering a section
995 motion, and that having apparently found probable cause based on the transcript of
the preliminary hearing alone, no further inquiry was needed.


       12
         Defendant was arraigned on the information on October 22, 2014, and filed the
section 995 motion on December 24, 2014; it was heard on January 30, 2015.


                                              10
       Judge Moscone heard the motion to reconsider on June 12, 2015, and granted the
motion. He indicated that he was “not sure whether I actually saw any of the video clips
or whether I just as [sic]—you know, I was reading the testimony. I kind of have a
mental image of what was going on.”13 Young’s defense counsel opined that Judge
Moscone might have been thinking of an excerpt of video that was shown to him in
connection with the subsequent change of plea of defendant Holt, who had been charged
in connection with this incident.
       In any event, while Judge Moscone acknowledged that it was “kind of a low
standard” to determine in a section 995 motion whether there were grounds to show that
an offense had been committed, he concluded that “given the importance of the case and
nature of the charges, I probably should take another look at it with the videos.” He
continued, “I’m not saying the decision is going to be any different from what it was
before. . . . [¶] It’s just a question of—I don’t think I reviewed the things because they
weren’t submitted at the time that I had the review. And so if we have them now, it’s the
least I can do . . . [¶] is take a look at them.
       Judge Moscone Reconsiders the Section 995 Motion
       Judge Moscone subsequently conducted a very brief hearing on the merits of the
renewed section 995 motion on August 3, 2015. Neither counsel presented further
argument at that time. Judge Moscone stated, “This was a motion to reconsider a prior
ruling on a 995 motion based on the Court’s inability at that time to view the videos prior
to the original hearing. [¶] So the matter was then submitted, and the Court did view the
videos. And I also reviewed the reporter’s transcript of the preliminary hearing.
[¶] Having reviewed that, the Court does not find sufficient evidence to find reasonable
and probable cause to hold Mr. Young to answer to the charge alleged in Count 1, that is


       13
          At a pretrial hearing 10 days earlier addressing the district attorney’s request for
a continuance for time to respond to the motion for reconsideration, Judge Moscone
appeared to acknowledge that he had not viewed the video at the time of the hearing on
the original 995 motion. “We do not have video, and I didn’t have the video last time,
which is why I indicated on the record that I hadn’t reviewed it.”


                                                   11
a violation of Penal Code section 187.” The balance of the section 995 motion
addressing the other charges in the information against Young was denied, without
explanation. Judge Moscone thus let stand the remaining charges against defendant,
which included assault with force likely to cause great bodily injury against Beltran and
against Alarcon, and assault with a semiautomatic firearm against Beltran and against
Alarcon.
       The People then timely filed this appeal.
                                       DISCUSSION
I.     The Trial Judge Did Not Err in Reconsidering His Earlier Order.
       The Attorney General contends that Judge Moscone was without authority to
reconsider his prior ruling on the section 995 motion, and the order must be reversed on
this ground without ever reaching the merits of the section 995 motion.
       It is well established law that in criminal cases a trial court has the power to
reconsider its own interim rulings, with few limits. (In re Alberto (2002) 102
Cal.App.4th 421, 426; People v. Castello (1998) 65 Cal.App.4th 1242, 1246 (Castello).)
Notwithstanding, the Attorney General contends that Judge Moscone had no power to
reconsider the section 995 motion here because it was not based on any “changed
circumstances,” and because it was a “final order” not subject to reconsideration.
       The Attorney General relies primarily on In re Kowalski (1971) 21 Cal.App.3d 67
(Kowalski), but that case is distinguishable. Kowalski was a writ proceeding where one
judge in effect reconsidered the section 995 ruling of another judge and reached a
different result. Defendant Kowalski had been charged with lewd and lascivious
behavior with minors. The first judge (Low) denied a section 995 motion to dismiss the
indictment. The case went to trial before a second judge (Fisher), who granted a motion
for mistrial and then, “in substance, invited” Kowalski to renew his section 995 motion.
(Id. at p. 69.) Judge Fisher then granted the section 995 motion and dismissed the case.
For reasons not explained in the opinion, two days later the parties were before Judge
Low again. Although defendant contended that the case had been dismissed by Judge
Fisher, Judge Low disagreed, stating that Judge Fisher had acted in excess of jurisdiction


                                             12
in granting the section 995 motion, and the order of dismissal was void. Judge Low then
set a new trial date and bail. Kowalski petitioned for a writ of habeas corpus on the
ground that Judge Fisher had jurisdiction to grant the second section 995 motion and
dismiss the case, and another judge on the same court (Low) couldn’t simply set that
order aside. The Court of Appeal agreed, holding that Judge Fisher did not commit
“jurisdictional error” in granting the section 995 motion, and his order was “ ‘binding’ ”
and should have been followed until such time as it was overturned. (Id. at p. 71.) The
court in Kowalski noted that the People were “not without a remedy;” they could have
filed an appeal from Judge Fisher’s dismissal order pursuant to section 1238, subdivision
(a)(1), but failed to do so and let it become final. As such, because the case had been
dismissed by Judge Fisher, and Judge Low’s orders setting a new trial date and fixing bail
were void, the writ of habeas corpus was granted.
       Along the way to its holding, the Kowalski court cited a rule of civil procedure for
the proposition that “[o]rdinarily, a motion under section 995 should not be renewed
unless changed circumstances are shown which have a significant bearing on the question
whether a defendant was indicted or committed without probable cause. (Cf. Code Civ.
Proc., § 1008.) Such circumstances might exist, for example, if there were a substantial
change in the law between the time of the first and second motions, which made
inadmissible much of the testimony considered by the grand jury or magistrate.” The
Kowalski court concluded that “[i]n this case, without any showing of changed
circumstances, Judge Fisher considered the matters already ruled on by Judge Low and
reached a different decision. This was an abuse of discretion and was error, but it was
not a jurisdictional error.” (Kowalski, supra, 21 Cal.App.3d at pp. 70-71.)
       Thus, Kowalski is distinguishable because it arose in the context of a situation
where one judge reconsidered and in effect overruled a different judge’s order. That is
not the case here, where Judge Moscone reconsidered his own order after he believed he
had failed to consider the video evidence. Further, Kowalski’s statement that a section
995 motion may be renewed ordinarily only if there are changed circumstances relied by
analogy to Code of Civil Procedure section 1008, which governs motions for


                                            13
reconsideration in civil cases. As other courts have concluded, this is a thin reed on
which to base a rule in a criminal case.
       In Castello, supra, 65 Cal.App.4th at page 1245, a trial court initially found true
an allegation of a prior conviction, but in response to a later motion by defendant
reconsidered its decision and reversed its finding. The People argued that Code of Civil
Procedure section 1008 extended to criminal cases and the trial court did not have the
power even to reconsider an interim ruling, also relying on Kowalski. The court in
Castello rejected this argument, and because its reasoning is directly applicable to this
case, we quote it extensively: “In general, to decide the proper rule of criminal procedure
by reliance upon rules of civil procedure ‘would be to ignore the underlying rights of the
presumption of innocence and proof beyond a reasonable doubt.’ (People v. Belton
(1979) 23 Cal.3d 516, 522.) Gonzales v. Superior Court (1935) 3 Cal.2d 260, 263–264,
concluded that only those parts of the Code of Civil Procedure which are expressly made
applicable to penal actions apply to criminal cases. As stated in Smith v. Superior Court
(1981) 115 Cal.App.3d 285, 291, ‘[t]he rationale [of Gonzales] should apply . . . to
preclude operation of other Code of Civil Procedure sections . . ., such as section 1008’
since section 1008 is not so incorporated. (Accord, People v. Glimps (1979) 92
Cal.App.3d 315, 325, fn. 6.)
       “. . . [Kowalski, supra,] 21 Cal.App.3d 67, 70, reasoned that a motion under . . .
section 995 should not be renewed unless changed circumstances are shown, using [Code
of Civil Procedure] section 1008 by analogy only. (See Cal. Style Manual (3d ed. 1986)
§ 101, p. 69 [meaning of ‘cf.’].) The court in People v. Locklar (1978) 84 Cal.App.3d
224, 230 relying on [Kowalski], did imply in dicta that section 1008 applied in a criminal
case. However, this dicta, based on a misreading of [Kowalski] does not bind us. (See,
e.g., Hart v. Burnett (1860) 15 Cal. 530, 598–599.) Moreover, these cases primarily
concern the rule that one trial court judge may not reconsider and overrule a ruling of
another judge. (See, e.g., Greene v. State Farm Fire & Casualty Co. (1990) 224
Cal.App.3d 1583, 1588–1589.)



                                             14
       “The California Supreme Court has often recognized the ‘inherent powers of the
court . . . to insure the orderly administration of justice.’ (Hays v. Superior Court (1940)
16 Cal.2d 260, 264; see also Bank of America v. Superior Court (1942) 20 Cal.2d 697,
702 [court has power to change interim rulings]; Millholen v. Riley (1930) 211 Cal. 29,
33–34.) In criminal cases, the court has acknowledged ‘the inherent power of every court
to develop rules of procedure aimed at facilitating the administration of criminal justice
and promoting the orderly ascertainment of the truth.’ (Joe Z. v. Superior Court (1970) 3
Cal.3d 797, 801–802; Powell v. Superior Court (1957) 48 Cal.2d 704, 708.) . . .
       “A court’s inherent powers are wide. (See, e.g., Asbestos Claims Facility v. Berry
& Berry (1990) 219 Cal.App.3d 9, 19–24, disapproved on other grounds in Kowis v.
Howard (1992) 3 Cal.4th 888, 896–897; Cottle v. Superior Court (1992) 3 Cal.App.4th
1367, 1377-1378.) They include authority to rehear or reconsider rulings: ‘[T]he power
to grant rehearings is inherent,—is an essential ingredient of jurisdiction, and ends only
with the loss of jurisdiction.’ (In re Jessup (1889) 81 Cal. 408, 468; accord, Metropolitan
Water Dist. v. Adams (1942) 19 Cal.2d 463, 469.) ‘ “One of the powers which has
always been recognized as inherent in courts, which are protected in their existence, their
powers and jurisdiction by constitutional provisions, has been the right to control its order
of business and to so conduct the same that the rights of all suitors before them may be
safeguarded. This power has been recognized as judicial in its nature, and as being a
necessary appendage to a court organized to enforce rights and redress wrongs.” ’
(Lorraine v. McComb (1934) 220 Cal. 753, 756, quoting Ringlander v. Star Co. (1904)
98 App.Div. 101, 104, italics added.)
       “Moreover, even if [Code of Civil Procedure] section 1008 were deemed
applicable to a criminal case, that statute, by its express terms, governs only a litigant’s
ability to renew a motion or advance an application, not the court’s inherent power to
reconsider its own interim rulings. [Citations.]
       “A court could not operate successfully under the requirement of infallibility in its
interim rulings. Miscarriage of justice results where a court is unable to correct its own
perceived legal errors, particularly in criminal cases where life, liberty, and public


                                              15
protection are at stake. Such a rule would be ‘ “ . . . a serious impediment to a fair and
speedy disposition of causes. . . .” [Citations.]’ (De La Beckwith v. Superior Court
(1905) 146 Cal. 496, 500, quoting Richman v. Board of Supervisors of Muscatine County
(1889) 77 Iowa 513, 524.).” (Castello, supra, 65 Cal.App.4th at pp. 1246-1248, fn.
omitted.)
          The logic of Castello applies to this case. Judge Moscone came to perceive that he
had made a legal error in not reviewing the critical videotape evidence essential to
determining whether to hold Young to answer for murder. Neither Kowalski nor Code of
Civil Procedure section 1008 stands in the way of his discretion to reconsider his original
ruling.
          The Attorney General also argues that it was error to reconsider the section 995
motion because it was a “final” not an “interim” order. This argument is plainly
incorrect.
          “Generally speaking, courts may correct judicial error in the making of interim
orders or in limine rulings until pronouncement or entry of a judgment. [Citations.] On
the other hand, judicial error in the making of a final order or judgment ‘may not be
corrected except pursuant to statutory procedures’ or on the limited grounds available for
a collateral attack.’ [Citations.]” (People v. DeLouize (2004) 32 Cal.4th 1223, 1231, fn.
omitted (DeLouize).)
          In DeLouize, our Supreme Court addressed whether in a criminal case a court is
prohibited from reconsidering its order granting a new trial. The trial court had granted
defendant’s motion for new trial on the ground that, based on a recently published Court
of Appeal decision, the trial court had committed structural error in misinstructing the
jury. The prosecution (after the time to appeal the order granting new trial had passed)
then made a motion to reconsider the order granting new trial on the grounds that a
second Court of Appeal decision had concluded that the jury instruction was valid, the
Supreme Court had ordered depublication of the first Court of Appeal decision that had
been the basis for the new trial order, and the Supreme Court had itself issued a decision



                                               16
stating that the jury instruction at issue was adequate. (DeLouize, supra, 32 Cal.4th at p.
1227.)
         The court in DeLouize held that an order granting a new trial is “not final in the
sense of being a final resolution of the case or a final determination of the defendant’s
guilt or innocence. On the contrary, an order granting a new trial ‘does not finally
dispose of the matter.’ ” (DeLouize, supra, 32 Cal.4th at p. 1231.) Section 1180, in fact,
states that it “ ‘places the parties in the same position as if no trial had been had.’ ” Thus,
DeLouize concluded that the order granting new trial is an “interim order in the sense that
it requires further proceedings before the case may be resolved and judgment may be
pronounced.” (Id. at p. 1231.)
         DeLouize explained that whether the order was appealable or not was not a bright
line test of a final versus an interim order. “Although courts have sometimes used
appealability as a test for distinguishing final orders from interim orders [citations], a
better approach here, we think, is to analyze the issue in terms of the policies underlying
the general concept of finality. Orders and judgments are deemed final in the superior
court, and not subject to reconsideration by that court, to preserve confidence in the
integrity of judicial procedures and to avoid the delays and inefficiencies associated with
repeated examination and relitigation of the same facts and issues. [Citation.] The
concept of finality ‘rests upon the sound policy of limiting litigation by preventing a party
who has had one fair adversary hearing on an issue from again drawing it into
controversy and subjecting the other party to further expense in its reexamination.”
(DeLouize, supra, 32 Cal.4th at p. 1232.)
         Thus, the court reasoned that even though the motion granting the order for new
trial was appealable, new trials “substantially prolong criminal proceedings,” and
“allowing trial courts some authority to reconsider and to vacate orders granting new
trials may lead to earlier resolution of the matter and thereby promote the interests
underlying judicial finality rules.” (DeLouize, supra, 32 Cal.4th at p. 1232.)
         Whether this particular order denying a section 995 motion is interim or final is an
easily answered question. When a defendant moves to dismiss an information under the


                                               17
circumstances of this case, “the question of his guilt or innocence is not before the court.”
(People v. McKee (1968) 267 Cal.App.2d 509, 514.) The denial of a section 995 motion
decides no more than that there is “reasonable or probable cause to believe the defendant
guilty of the offense charged,” with the result that the criminal information goes forward
as charged. (Id. at p. 515.) Put another way, in the language of DeLouize, an order
denying a section 995 motion is “an interim order in the sense that it requires further
proceedings before the case may be resolved and judgment may be pronounced.”
(DeLouize, supra, 32 Cal.4th at p. 1231.)
       Although the Attorney General acknowledges that whether an order is appealable
is not determinative as to whether it is final or interim for purposes of reconsideration by
a trial court, she nonetheless urges that we take into account that there is a statutory
provision permitting pretrial review of the denial of section 995 motions and defendant
did not avail himself of it in this case. She concludes that allowing defendant to move for
reconsideration rather than timely filing a motion for pretrial review pursuant to section
1510 makes the limitations of section 1510 “superfluous” and only encourages repetitive
litigation in the trial court.
       When that argument is unpacked, it is unpersuasive. There is no clear statutory
time period in which to file a section 995 motion; section 997 states it must be heard
“prior to trial.”14 If a defendant makes a section 995 motion within the statutory time
period provided by section 1510, he leaves open the possibility of seeking pretrial
appellate review of an unfavorable denial of a section 995 motion. The avenue that is
available is a writ of prohibition, pursuant to section 999a, which itself must be filed
within 15 days after the section 995 motion is denied. (§ 999a; 4 Witkin, Cal. Criminal
Law (4th ed. 2015) Pretrial Proceedings, § 271, p. 538 [defendant may seek prompt


       14
          The timeliness of defendant’s original section 995 motion is not an issue in this
case, and thus we need not and do not consider the circumstances under which a section
995 motion might be considered untimely. (See, e.g., People v. Arjon (2004) 119
Cal.App.4th 185, 190-191 [under the facts of this case, not an abuse of discretion to
refuse to consider section 995 motion immediately before trial].)


                                              18
review of order denying section 995 motion].) If a defendant makes a section 995 motion
after the time period provided by section 1510, he may not seek pretrial appellate review
of the denial of a section 995 motion. But that does not mean that a defendant is
precluded from making the section 995 motion to begin with. (See Fleming v. Superior
Court (2010) 191 Cal.App.4th 73, 103 [“ ‘[s]ection 1510 does not prevent a defendant in
a felony prosecution from making a section 995 motion at any time before trial; it
operates only to preclude pretrial appellate relief from an order denying one which (1)
was made more than 60 days after his arraignment and (2) does not fall within either of
the exception for which section 1510 expressly provides’ ”], citing Ghent v. Superior
Court (1979) 90 Cal.App.3d 944, 950-951.)
       For whatever reason, defendant Young apparently made his original section 995
motion after the time when he could avail himself of pretrial appellate review of an
unfavorable decision.15 But he made the section 995 motion well in advance of trial and
the prosecution did not challenge its timeliness.
       The Attorney General is incorrect that the course defendant Young followed made
section 1510 “superfluous,” as if that characterization has some relevance to the outcome
of this appeal. True, because of the timing of his initial section 995 motion defendant
cannot avail himself of pretrial review pursuant section 1510, but that is neither here nor
there for purposes of answering the question whether Judge Moscone could decide to
reconsider his prior ruling on the section 995 motion. Thus we conclude that the
Attorney General’s argument that defendant’s “failure to fully avail himself of his
statutory remedy does not allow him a different remedy—reconsideration—that the court
has no authority to provide” is without merit.
       But let us not lose sight of the big picture in this unusual case. In ruling on the
section 995 motion the first time, Judge Moscone did not view the key evidence in the

       15
          We describe the pretrial review scheme only by way of background to address
the Attorney General’s arguments. We emphasize that we do not know why defendant
filed the initial section 995 motion when he did, and whether he could have found a basis
for pretrial review is not in the record—or an issue—before us.


                                              19
case. It did not take much to persuade him that he should reconsider the motion, even
though he wasn’t convinced that it would change the outcome of his decision. Judge
Moscone’s conscientious acknowledgment that he needed to review the tape is what
“preserve[s] confidence in the integrity of judicial procedures.” (DeLouize, supra, 32
Cal.4th at p. 1232.) On the facts of this case, we cannot say that he had no authority to
reconsider his prior ruling.
II.    The Trial Judge Did Not Err When, Upon Reconsideration, He Granted
       the Section 995 Motion to Dismiss the Murder Count
       A.     Standard of Review
       At the conclusion of the preliminary hearing, Judge Benson dismissed count 1, the
murder count, for insufficient evidence. Judge Benson made no factual findings with
regard to the charges. The district attorney then realleged the murder count, as he was
authorized to do pursuant to section 739, which permitted him to include in the
information “either the offense or offenses named in the order of commitment or any
offense or offenses shown by the evidence taken before the magistrate to have been
committed.”
       Section 995 requires an information to be set aside if the defendant “had been
committed without reasonable or probable cause.” (§ 995, subd. (a)(2)(B).)
“ ‘ “ ‘Reasonable or 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.” [Citation.]’ ” (People v. Mower (2002) 28 Cal.4th
457, 473.) In reviewing the trial court’s ruling on a section 995 motion, we directly
review the determination of the magistrate. (See People v. Barba (2012) 211
Cal.App.4th 214, 227-288.)
       Where, as here, a district attorney files an information in the superior court after
preliminary hearing with an offense that was not included in the commitment order
signed by the magistrate, “the court must uphold the information if the evidence adduced
at the preliminary hearing is sufficient to support the new or additional charge.
[Citation.]” (People v. McKee, supra, 267 Cal.App.2d at p. 514.) “ ‘Thus, when section


                                             20
739 and . . . section 995 are read conjointly, it follows that the superior court is likewise
not bound by the view of the committing magistrate; it too should uphold the information
as to any offense charged in the information of which any reasonable construction of the
evidence adduced at the preliminary hearing admits. In other words, if the defendant
moves to dismiss the information under these circumstances, the question of his guilt or
innocence is not before the court nor does the issue concern the quantum of evidence
necessary to sustain a judgment of conviction. On the contrary, the court should decide
from the evidence adduced at the preliminary hearing, without attempting to reconcile
conflicts or judge the credibility of the witnesses, whether there is reasonable or probable
cause to believe the defendant guilty of the offense charged. And, there is sufficient
evidence to require the superior court to deny defendant's motion if it raises a clear and
distinct inference of the existence of the essential elements of the crime charged
[citation].’ [Citation.]” (People v. Barba, supra, 211 Cal.App.4th at p. 227-228, quoting
People v. McKee, supra, 267 Cal.App.2d at pp. 514-515, fns. omitted.)
       B.     Aider and Abettor Liability
       Young was charged with murder, apparently on the theory that he aided and
abetted York’s assault with a firearm, and that the murder of Beltran was a natural and
probable consequence of the assault. The evidence is undisputed that Young was not the
shooter.
       While “[t]he actual perpetrator must have whatever mental state is required for
each crime charged,” the requirement for an aider and abettor is to “ ‘act with knowledge
of the criminal purpose of the perpetrator and with an intent or purpose either of
committing, or of encouraging or facilitating commission of, the offense.’ (People v.
Beeman (1984) 35 Cal.3d 547, 560 [(Beeman)].)’ ” (People v. Mendoza (1998) 18
Cal.4th 1114, 1123 (Mendoza).)
       Once the necessary mental state is established, “ ‘a defendant whose liability is
predicated on his status as an aider and abettor need not have intended to encourage or
facilitate the particular offense ultimately committed by the perpetrator. His knowledge
that an act which is criminal was intended, and his action taken with the intent that the act


                                              21
be encouraged or facilitated, are sufficient to impose liability on him for any reasonably
foreseeable offense committed as a consequence by the perpetrator.’ ” (People v.
Prettyman (1996) 14 Cal.4th 248, 261 (Prettyman), quoting People v. Croy (1985) 41
Cal.3d 1, 12, fn. 5.) “[T]he natural and probable consequences doctrine ‘allows an aider
and abettor to be convicted of murder, without malice, even where the target offense is
not an inherently dangerous felony.’ ” (People v. Sanchez (2013) 221 Cal.App.4th 1012,
1026, quoting People v. Culuko (2000) 78 Cal.App.4th 307, 322.) As our Supreme Court
noted in Prettyman, decisions involving the natural and probable consequences doctrine
“commonly involved situations in which a defendant assisted or encouraged a
confederate to commit an assault with a deadly weapon or with potentially deadly force,
and the confederate not only assaulted but also murdered the victim.” (Prettyman, supra,
14 Cal.4th at p. 262.)
       “[W]hen a particular aiding and abetting case triggers application of the ‘natural
and probable consequences’ doctrine, the Beeman test applies, and the trier of fact must
find that the defendant, acting with (1) knowledge of the unlawful purpose of the
perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the
commission of a predicate or target offense; (3) by act or advice aided, promoted,
encouraged or instigated the commission of the target crime. But the trier of fact must
also find that (4) the defendant’s confederate committed an offense other than the target
crime; and (5) the offense committed by the confederate was a natural and probable
consequence of the target crime that the defendant aided and abetted.” (Prettyman,
supra, 14 Cal.4th at p. 262, fn. omitted.)
       Whether murder is a natural and probable consequence of a target crime is an
objective determination. “On the issue of foreseeability the ‘question is not whether the
aider and abettor actually foresaw the . . . crime, but whether, judged objectively, it was
reasonably foreseeable.’ ” (People v. Karapetyan (2006) 140 Cal.App.4th 1172, 1177,
quoting Mendoza, supra, 18 Cal.4th at p. 1133.)




                                             22
       C. Analysis
       We conclude that Judge Moscone did not err when, upon reconsideration of the
section 995 motion, he dismissed the murder charge as to defendant Young. We note at
the outset that the impression of the evidence that one gets from reading the prosecution’s
opposition to the section 995 motion is, in several important respects, different from
watching the video excerpts.
       This much is clear. On the morning in question, Owens was threatened by two
men who refused to leave the hotel (Alarcon and Beltran) and was unable to handle them
on his own. Owens told York that he was having problems with these two men. Owens
does not remember what he told York, and doesn’t remember telling him to get a firearm
or to get defendant Young. But Young’s “job” was as a clerk and “like a security guard.”
Owens had “trained” him, and Young lived and worked at the Henry Hotel. There was
no other witness who testified on this subject.
       The video excerpts show that York immediately went upstairs to the seventh floor
and ran to the room on the seventh floor that defendant, York, and a woman had been
seen entering earlier in the pre-dawn hours of that morning. We do not know what York
said to defendant in room 703. York was only in the room for a matter of seven or eight
seconds. But we can draw an inference that he said something to Young that conveyed
urgency about something in the lobby because, well less than a minute later, defendant
Young left room 703 half dressed, pulling on a sweatshirt, and hurried downstairs to the
lobby. We infer from their actions that defendant and York were reacting to something
Owens told York about what was going on in the lobby. But it is sheer speculation that
defendant and York agreed in those split seconds on the seventh floor of the hotel that
they were going to assault Beltran and Alarcon with a firearm, or even that defendant
knew York left room 703 armed.
       In the trial court, the prosecutor wrote in opposition to the original section 995
motion that the “target or intended crime was an assault with a firearm; the non-target
crime was the resulting foreseeable murder. It is abundantly clear from the video that



                                             23
Joseph Young provided a loaded handgun to York and rushed to join in on the assault.”
(Emphasis added.)
       We have viewed all of the video excerpts (as did Judge Benson at the preliminary
hearing, and as did Judge Moscone upon his reconsideration of the section 995 motion),
and there is simply nothing remotely like this on the video. Young is never seen
providing a handgun to York, loaded or not. Not surprisingly, the Attorney General has
not pressed this argument on appeal.
       In the trial court, the prosecutor elaborated in written opposition to the original
section 995 motion that “York entered Young’s room; inferentially a short conversation
took place between Young and York, and what occurs after this provides the
foreseeability. York is provided with the handgun by Young or he retrieves a large
handgun with an extended magazine from Young’s room. In either instance, Young has
the knowledge of the handgun and its intended purpose—to assault the individuals
downstairs. How does one know this? Because both Young and York emerged moments
later with a single purpose in mind—to bring a loaded gun with an extended clip to an
argument. York ran out first, followed by a half-dressed Young who bounded down the
stairs to confront the unruly victims.” The prosecutor wrote that when York came out of
“Young’s room” he was carrying a gun “in plain sight.” Again, having viewed all of the
video evidence (as did Judge Benson when he held the preliminary hearing), we can state
that this misdescribes the video evidence.
       York and Young “emerged” from the room separately. What video footage there
is shows that York ran out of room 703 first, carrying a gun down at his side that was “in
plain sight” to the surveillance cameras, but not at that point to defendant Young. York
left room 703 alone, and went quickly down the hall and straight into the elevator. More
than 15 seconds later defendant and Dizon came running out of room 703. The timing is
important, because by this time, York (and the gun) were not in Young’s sight. When
Young got to the top of the stairs on the seventh floor, York was already in the elevator.
Thus, from the time York was outside room 703 until the time York got off the elevator
in the lobby, Young could not have seen the gun in York’s hand, or had any discussion


                                             24
with him as to what, if anything, each intended to do. We know this from video excerpts
taken from two different surveillance cameras from two different perspectives on the
seventh floor. No reasonable inference can be drawn to the contrary. Thus to the extent
that the inference argued by the district attorney in opposition to the section 995 motion
is drawn from the evidence we have described thus far (i.e., that defendant Young and
York “joined into an agreement to assault the victims with a firearm”), it is
unsupported.16
       The supposed significance to be drawn from what happened on the seventh floor
carried through the rest of the district attorney’s argument to the trial court in opposition
to the section 995 motion. The district attorney argued that the “actions of Young in the
lobby corroborate the inference that Young foresaw what was about to occur when he
emerged from his hotel room rushing downstairs,” relying on the discredited arguments
about the evidence that we have described above.17 (Emphasis added.)
       The prosecution argued in opposition to the section 995 motion that defendant was
“waiting for York to arrive with the gun before physically attacking [Beltran]. Both York
and Young had like-minded intentions because the moment that York emerged from the
elevator and Young looked over his shoulder to see York with the gun, Young began the
assault with the handgun as not only an aider and abettor but also a principal. . . . Young
starts the assault and York sees this and begins to assault Alarcon with the handgun.”


       16
         The Attorney General also relies heavily on the assertion “[t]hat defendant knew
York had a gun was demonstrated by the fact they came out of the room together while
York was holding the gun in plain sight.” (Emphasis added.) For the reasons we have
described above, the video evidence does not support drawing this inference.
       17
          What happened on the seventh floor of the hotel immediately before the incident
was the essential basis for the opposition to the section 995 motion. In summing up the
evidence in its opposition brief, the prosecutor described the “magistrate’s failure to hold
Young responsible for furnishing the gun to York and then running to the lobby to join
in on the assault” as “erroneous,” in light of the “low standard for a holding order.”
These actions, according to the prosecution, were “sufficient from a probable cause
standard to show circumstantially that Young knew that York intended to use the gun in
the planned assault of the victims.”


                                              25
       Again, this argument presumes that defendant Young already knew York had a
gun. We conclude that it is not reasonable to infer from the evidence that Young
“waited” to embark on the agreed-upon physical attack until the gun arrived. Owens
testified that when defendant Young arrived in the lobby, Owens told him what was
going on, and asked him “if he could please let these two guys that was on the opposite
side of the gate know that I am not lying to them about our policy at nighttime as far as
visiting.” According to Owens, Young agreed; “ ‘[y]eah, sure, I’ll do that for you.’ ”
Also according to Owens, Young “went outside the gate, right to the guys, and he started
telling them . . . exactly what I told them” about the nighttime policy. Young met with a
hostile response. One of them said to defendant Young “ ‘[m]an, get the fuck out of my
face.’ ” According to Owens, this was “the bell” that “angered” Young, and he
“immediately got into a fight with him.”18 The video excerpts show that defendant
Young got to the lobby first and immediately verbally engaged with Alarcon and Beltran,
while standing in the threshold of the partially opened interior lobby gate. Owens was
there too, standing in the outside part of the lobby near Alarcon and Beltran.
       York arrived downstairs in the lobby by elevator about 10-12 seconds after Young
had begun engaging with Alarcon and Beltran. At that moment, defendant Young
glanced back over his shoulder for a split second looking toward the elevator. There is
no sound on the video, and no apparent non-verbal communication between York and
defendant Young. Nor was there any testimony from Owens as to whether either said
anything to the other. As York left the elevator and approached the outer lobby with a
gun, defendant Young moved from his position and pushed Beltran out of the way, out of
the lobby and onto the sidewalk. Judge Benson aptly described this part of the video as
looking like Young “forcibly ejected [Beltran] out onto the street.” Owens agreed in his

       18
         Owens described his own anger and compared it to Young’s: “That was the
bell, meaning that the dude immediately angered—angered Mr. Young when he said that,
you know, because it’s like—it’s like with me, the same thing I tried to explain . . . with
me. I was so angry, I wanted to jump on the dude calling me these niggers and—and
what he could do. So that [Young] is a younger man, like he’s a younger man, and he
immediately got into a fight with him.”


                                            26
preliminary hearing testimony that this was what Young was “trained to do in these kind
of circumstances.”19 Judge Benson again aptly described the video excerpt of the
seconds-long encounter between defendant and Beltran after York arrived as “a lot of
swinging. I don’t know if Mr. Young connected much. I don’t think either of them laid a
glove on each other. There’s a lot of shoving and swinging.”20
         While defendant Young pushed Beltran out the door and onto the sidewalk, the
video evidence shows that York, with gun in hand, assaulted Alarcon inside the hotel
lobby.
         This was a fluid and very fast moving situation, and these video excerpts are
snippets from different camera angles inside the lobby and outside the hotel. From
beginning to end the physical confrontation was only a few minutes. Because we give no
credit to the prosecution’s unproven assertions that it was Young’s gun, that he gave it to
York, and that it was in Young’s plain sight on the seventh floor, the evidence necessary
to hold Young to answer for the murder charge depends upon whether in Young’s split
second glance backward to the elevator and what immediately thereafter transpired, a
reasonable inference can be drawn that defendant and York agreed to criminally assault
Beltran and Alarcon and that in the prosecutor’s words “it was foreseeable to Young that
Beltran would be killed during the assault in which [Young] participated” based “on the
theory that Young was an aider and abettor.”



         19
          As we have described, Judge Benson paid close attention to the video evidence.
This exchange occurred when Owens was testifying at the preliminary hearing and being
asked questions about the video excerpts. While the video was stopped momentarily,
Judge Benson asked Owens “[d]oes it appear to you that Mr. Young, at what we’ve just
seen, forcibly ejected the shorter guy [Beltran] out onto the street?” To which Owens
replied, “It seems like that,” and the court responded, “Thank you. I just wanted to make
sure what I was looking at.” Defense counsel then followed up: “Is that what Mr. Young,
in his capacity as being a security person at the Henry Hotel, is trained to do in these kind
of circumstances?” Owens responded, “To remove someone out the building, yes. Yes.”
         20
          Judge Benson did not hold defendant to answer on the assault charges against
Beltran, but this issue is not before us on appeal.


                                              27
       The Attorney General’s argument hinges on her contention that it is a reasonable
inference that Young waited and did not physically touch the Beltran or Alarcon until he
saw York coming down the elevator with the gun. In his respondent’s letter brief on
appeal, defendant counters that this inference is contradicted by the video (Young
actually engaging Beltran and Alarcon at Owens’s request) and by Owens’s testimony
about the insulting words that angered and triggered Young, as we have described
above.21 Although the Attorney General acknowledges in her reply brief on appeal that
“[d]efendant extensively discusses the facts, gleaned from the video recordings, arguing a
likelihood he was unaware of York’s possession of the firearm and lacked the intent to
assault the victims,” she is dismissive that any of the evidence matters. “Defendant’s
interpretation of the video recordings, and his assertion that he did not aid and abet
York’s assault, is of no moment,” because Judge Moscone denied the section 995 motion
on the assaults with a firearm. From this the Attorney General concludes that Judge
Moscone must have found that defendant had “knowledge of York’s criminal purpose
and had the intent to encourage or facilitat[e] York’s assault with a firearm,” and that “if
there was sufficient probable cause to believe defendant aided and abetted to the assaults
with a firearm, then there was equally sufficient probable cause to find defendant liable
for murder as a natural and probable consequence of assault with a firearm.”22
       The Attorney General cites no authority for why the unappealed-from portion of
Judge Moscone’s order on the reconsidered section 995 motion has any relevance to this
appeal. We believe there is none. This is a pre-trial appeal by the Attorney General as to
one dismissed count; defendant has not (and could not have at this point) cross-appealed
the remainder of Judge Moscone’s order denying his section 995 motion. Because the

       21
          The prosecution did not shed any light on the timing issue by asking Owens this
ambiguous follow-up question: “And when [defendant Young] immediately got into a
fight, before he got into a fight did you see anybody else arrive in the lobby,” Owens
answered “yes,” and identified York and Holt. (Emphasis added.)
       22
         We sent a focus letter to counsel before oral argument asking them to be
prepared to address to what extent we should consider that defendant Young had been
held to answer on counts 4 and 5 of the information.


                                             28
magistrate (Judge Benson) made no express factual findings when he did not hold
defendant Young to answer on the murder charge, the district attorney was not bound by
the view of the committing magistrate and exercised his discretion pursuant to section
739 to include the murder charge in the information. (People v. Barba, supra, 211
Cal.App.4th at p. 227.) On the district attorney’s appeal from the trial court’s order after
a section 995 motion, our task is to “ ‘decide from the evidence adduced at the
preliminary hearing, without attempting to reconcile conflicts or judge the credibility of
the witnesses, whether there is reasonable or probable cause to believe the defendant
guilty of the offense charged.’ ” (Id. at pp. 227-228, quoting People v. McKee, supra,
267 Cal.App.2d at p. 514, emphasis added).) And we do this for the only charge at issue
before us, which is murder. It is not our task to analyze nor are we bound by Judge
Moscone’s other rulings.23
       The Attorney General’s disinclination to address the actual evidence presented at
the preliminary hearing in this case—including the stark differences between what the
video actually shows and how it was characterized in the section 995 motion, and the
need to consider what inferences can be drawn from the evidence actually presented at
the preliminary hearing—leaves a gap in the Attorney General’s analysis and ultimately
in the evidence. Our review of the record is that the evidence presented at the
preliminary hearing was not enough to hold defendant Young to answer to the murder
charge. We express no opinion as to the remaining charges in the case.
       Because of our conclusion, we do not address defendant’s argument that he
should not be held to answer on the murder charge because of our Supreme Court’s
decision in Chun, supra, 45 Cal.4th at page 1194.

       23
         Neither party contends that Judge Moscone made any factual findings. Further,
the Attorney General agreed at oral argument that if this court were to affirm the order
dismissing the murder count, we would not then proceed to consider whether, in light of
our holding, there was probable cause to hold defendant Young to answer for the other
counts of the information that are not before us on this appeal. It’s not our role in this
appeal to reconcile our holding with Judge Moscone’s ruling on the balance of the section
995 motion.


                                             29
                                    DISPOSITION
      The trial court’s order dismissing the murder charge alleged in count 1 is affirmed.
Upon this decision becoming final, our previous order to stay proceedings below is
vacated.




                                           30
                                 _________________________
                                 Miller, J.


We concur:


_________________________
Kline, P.J.


_________________________
Stewart, J.




A146206, People v. Young




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