Filed 4/25/13 P. v. Graham CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Appellant,                                        E056064

v.                                                                       (Super.Ct.No. INF1200195)

JAMES RUSSELL GRAHAM, JR.,                                               OPINION

         Defendant and Respondent.




         APPEAL from the Superior Court of Riverside County. Thomas N. Douglass, Jr.

(retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art.

VI, § 6 of the Cal. Const.) and Victoria E. Cameron, Judges. Affirmed.

         Paul E. Zellerbach, District Attorney, and Alan D. Tate, Deputy District Attorney,

for Plaintiff and Appellant.




             Judge Cameron dismissed the complaint, and Judge Douglass denied the
motion to reinstate the complaint.


                                                             1
       Daniel J. Kessler, under appointment by the Court of Appeal, for Defendant and

Respondent.

       Plaintiff and Appellant the People of the State of California appeal from the order

denying their Penal Code section 871.51 motion to reinstate the complaint. The People

filed a complaint against defendant James Russell Graham charging him with burglary

and receiving stolen property. Defendant had already pleaded guilty to a subsequent

burglary where he was found with items taken in the instant burglary. Defendant brought

a motion to dismiss the complaint pursuant to section 654 and Kellett v. Superior Court

(1966) 63 Cal.2d 822 (Kellett) arguing that the People had to file all of the cases together.

The magistrate dismissed the complaint. The People filed a motion to reinstate the

complaint pursuant to section 871.5, which was denied on the grounds that the superior

court lacked jurisdiction to hear the appeal since section 654 and Kellett are not included

in the statutory provisions appealable under section 871.5.

       The People claim on appeal that the superior court erred by finding that it lacked

jurisdiction to hear the motion to reinstate the complaint and that the magistrate erred in

dismissing the complaint.




       1      All further statutory references are to the Penal Code unless otherwise
indicated.

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                                             I

                  FACTUAL AND PROCEDURAL BACKGROUND2

       On October 18, 2011, defendant entered a convenience store called the Flying J in

Thousand Palms (the Flying J case). He took $300 cash that was behind the counter and

fled. Defendant was later detained at his last known address after he was identified on

surveillance video. Defendant‟s person and truck were searched. A backpack was found

in his possession that contained a driver‟s license and credit cards belonging to David

Groode. He was also found in possession of methamphetamine.

       Prior to this, on October 13, 2011, Groode had returned to his residence located on

Cumbres Court in Cathedral City (the Groode case). He took a shower, and when he

emerged from the shower, a light-skinned Hispanic male was in his bedroom. Groode

chased him outside but lost him. The man took his jeans, which contained his cellular

telephone, house and vehicle keys, driver‟s license, credit cards, and $60 in cash.

       Defendant confessed to both the Flying J burglary and the burglary at Groode‟s

residence. Defendant wrote an apology letter to Groode. Groode was given back his

items after he identified them as belonging to him.

       On October 20, 2011, defendant was charged in case No. INF1102399, the Flying

J case, with second degree burglary and possession of methamphetamine. In the




       2      The case was dismissed prior to the preliminary hearing. The procedural
and factual background is therefore taken from the pleadings and exhibits filed in the trial
court, including the police reports.

                                             3
discovery packet given to defendant‟s counsel, the police report for the Groode burglary

was included, along with the apology letter written by defendant to Groode when he was

interrogated. On October 28, 2011, defendant pleaded guilty to a felony violation of

section 459 in the Flying J case. He was granted formal probation and released to a 90-

day inpatient drug treatment program.

       On January 11, 2012, defendant was charged by a felony complaint in case No.

INF1200195, the Groode case, with one count of burglary of an inhabited dwelling

committed on October 13, 2011 (§ 459) and one count of receiving stolen property (§

496, subd. (a)) committed on October 18, 2011.

       Prior to the preliminary hearing in the Groode case, defendant filed a notice of

motion and motion to dismiss the complaint on the grounds that “[f]urther prosecution

must be barred on the grounds that a second prosecution violates state and federal

constitutional prohibitions against Double Jeopardy, violates Penal Code section 654, and

conflicts with the holding of Kellett v. Superior Court (1966) 63 Cal.2d 822.” Defendant

contended that all the facts necessary to prosecute the Groode case were discovered at the

time of defendant‟s arrest in the Flying J case, and the two cases should have been

prosecuted together. Moreover, defendant believed that his guilty plea in the Flying J

case would resolve the entire matter.

       The People filed opposition to the motion. They argued that Kellett applied if the

prosecution was aware of more than one offense in which the same act or course of

conduct plays a significant part. If such a circumstance exists, then all offenses must be


                                             4
prosecuted in a single proceeding. When the criminal offenses are committed at different

times and places, those crimes need not be prosecuted in a single proceeding. The People

argued that the Groode case involved a burglary that was committed five days prior to the

Flying J burglary. Defendant had separate criminal objectives and could have

reconsidered his course of conduct prior to the Flying J burglary. Defendant filed a reply.

       A hearing was conducted on February 15, 2012, in front of a magistrate. At the

hearing, defendant additionally argued that at the time that he pleaded guilty in the Flying

J case, the discovery included all of the information necessary for the prosecution of the

Groode case. The People argued in opposition that Kellett applied when either the same

crime or the “immediate surrounding course of conduct” supporting a single criminal

objective are filed under separate complaints. The Groode case, occurring five days

prior, was a separate and distinct crime and could be prosecuted separately even if the

People knew about the crimes at the time of the Flying J prosecution. The People

admitted that the stolen property charge should have been filed with the Flying J case, but

the burglary at the Groode home was a separate case.

       The magistrate first noted that this was a “very close issue.” There was no

question that the stolen property charge -- which occurred on the same day as the Flying J

burglary -- was barred by Kellett. The magistrate stated that if defendant was not in

possession of the stolen property, the People would have a stronger argument, and even

with defendant‟s confession, additional investigation of the Groode burglary might have

been required. However, at the time that the Flying J case was resolved, all of the


                                             5
discovery necessary to charge defendant in the Groode case was in discovery and known

to the People.

       The magistrate ruled, “ . . . I believe that while you can argue back and forth

whether the residential burglary is separated, I believe that they are tied together because

of the stolen property, and I believe this really does violate the spirit of Kellett.” It noted

that Kellett was put in place so that when a case is resolved, the defendant need not worry

about being harassed on the same set of circumstances. The magistrate concluded,

“[T]he fact that this was not an amount at the [Flying J] burglary that normally would

have been a felony and the fact that it was pled that way on a reliance that the discovery

they had was to include everything he was culpable for in that discovery, I‟m going to

grant the Kellett motion.” The case was dismissed. According to the minute order for the

hearing, the magistrate dismissed the case pursuant to section 1385 even though the

magistrate did not mention section 1385 at the hearing.

       On February 24, 2012, the People filed a motion to compel the magistrate to

reinstate the complaint pursuant to section 871.5. The People contended that the

magistrate erred by granting defendant‟s “Kellett motion.” They argued that when

criminal offenses are committed at different times and at different places, those crimes

need not be prosecuted in a single proceeding. They argued that the protections of

section 654 could not be stretched to protect defendant, who committed a separate felony.

They conceded that the stolen property charge was barred by Kellett. Defendant did not

file opposition because his counsel was ill.


                                               6
       A hearing was conducted on March 19, 2012. The superior court met with counsel

in chambers. After the chambers conference, the court noted that it had reviewed a

memorandum on the issue that had been submitted by court research staff.3 Based on the

memorandum, the court decided that a dismissal pursuant to Kellett and section 654

requires direct appeal to the Court of Appeal. As such, the trial court found that it did not

have jurisdiction to hear the motion to reinstate the complaint, and it was denied. The

superior court did not reach the merits of the magistrate‟s dismissal.

       The People filed a timely notice of appeal from the March 19, 2012, decision,

citing only to the authority of section 1238, subdivision (a)(9).

                                              II

                                        ANALYSIS

       The People contend in this appeal that the trial court erred by denying its motion

to reinstate the complaint on jurisdictional grounds. They insist that they were entitled to

file a motion to reinstate the complaint under section 871.5 because the dismissal was

pursuant to section 1385, a statutory provision included in the language of section 871.5.

Moreover, assuming this court reaches the merits of its claim, the magistrate erred by

dismissing the complaint since the Groode burglary had a separate objective and was

committed at a different time.


       3      The record on appeal includes the memorandum prepared by the superior
court research staff in the confidential material transcript. Its contents need not be
discussed in this opinion except to the extent that the memorandum provided that the
superior court did not have jurisdiction to hear the motion to reinstate the complaint.

                                              7
        Section 871.5 allows the People to seek review of a magistrate‟s decision to

dismiss a complaint in the superior court. That section provides in pertinent part that

“[w]hen an action is dismissed by a magistrate pursuant to Section 859b, 861, 871, 1008,

1381.5, 1385, 1387, or 1389 of this code . . . the prosecutor may make a motion in the

superior court within 15 days to compel the magistrate to reinstate the complaint or a

portion thereof and to reinstate the custodial status of the defendant . . . .” (§ 871.5, subd.

(a), italics added.) The purpose of the statute is “„to decrease the number of refilings of

felony complaints when the dismissal by a magistrate was based upon a legal rather than

a factual ruling.‟” (People v. Superior Court (Feinstein) (1994) 29 Cal.App.4th 323,

331.)

        Here, the People appeal from the denial of its motion to reinstate the complaint

under section 1238, subdivision (a)(9), which provides that the People can appeal “[a]n

order denying the motion of the people to reinstate the complaint or a portion thereof

pursuant to section 871.5.”

        In People v. Williams (2005) 35 Cal.4th 817 (Williams), a magistrate reduced two

charged felonies to misdemeanors pursuant to section 17, subdivision (b)(5), after the

preliminary hearing. (Williams, at pp. 820.) The People sought a motion to reinstate the

complaint pursuant to section 871.5. The motion was denied on the grounds that section

17, subdivision (b)(5) was not a dismissal subject to review under the section. (Williams,

at p. 822.) The People filed an appeal from the denial of the motion to reinstate their

complaint pursuant to section 1238, subdivision (a)(9) and a direct appeal from the


                                               8
dismissal of the felony complaint under section 1238, subdivision (a)(8). (Williams, at p.

822, 824.) Section 1238 provides, in relevant part: “(a) An appeal may be taken by the

people from any of the following: [¶] . . . [¶] (8) An order or judgment dismissing or

otherwise terminating all or any portion of the action including such an order or judgment

after a verdict or finding of guilty or an order or judgment entered before the defendant

has been placed in jeopardy or where the defendant has waived jeopardy.”

       The Williams court first recognized that “[t]he prosecution in a criminal case has

no right to appeal except as provided by statute. [Citation.]” (Williams, supra, 35

Cal.4th at pp. 822-823.) The reason for such restriction is that “„[a]ppellate review at the

request of the People necessarily imposes substantial burdens on an accused, and the

extent to which such burdens should be imposed to review claimed errors involves a

delicate balancing of the competing considerations of preventing harassment of the

accused as against correcting possible errors.‟ [Citation.] Courts must respect the limits

on review imposed by the Legislature „although the People may thereby suffer a wrong

without a remedy.‟ [Citation.]” (Id. at p. 823.)

       The California Supreme Court then addressed the appeal from the motion to

reinstate the complaint. It first concluded that even if a superior court denies a motion to

reinstate the complaint on jurisdictional grounds, it could review the decision. (Williams,

supra, 35 Cal.4th at p. 824.) Thereafter, it concluded that the People were not entitled to

file a motion to reinstate the complaint pursuant to section 871.5 for review of a decision

made under section 17, subdivision (b)(5). The court made it clear that section 871.5 is


                                             9
not a vehicle for reviewing all dismissals by magistrates. It agreed with a prior case that

“„[t]he plain language of 871.5 evidences an intent to permit superior court review of

dismissal orders by magistrates when a complaint has been dismissed pursuant to

specifically enumerated statutory authority . . . .‟ [Citation.]” (Williams, at p. 827.) The

court concluded, “The list of dismissal orders that may be reviewed pursuant to section

871.5 does not included an order under section 17(b)(5) that a wobbler offense that was

charged as a felony is a misdemeanor, and we decline to add it.” (Id. at p. 828.) It went

on to discuss the direct appeal from the magistrate‟s order. (Id. at pp. 830-834.)

       Here, section 654 and Kellett are not listed in section 871.5 as statutory provisions

or case law that can be appealed through a motion to reinstate the complaint. We are

bound by the decision in Williams that section 871.5 should not be expanded to include

statutory provisions that are not included by the Legislature. (Auto Equity Sales, Inc. v.

Superior Court (1962) 57 Cal.2d 450, 455.) The superior court did not have jurisdiction

to hear the motion for reinstatement of the complaint.

       The People contend that the dismissal was pursuant to section 1385, subdivision

(a),4 a section included in section 871.5. However, the magistrate never stated at the

hearing that the dismissal of the complaint was pursuant to section 1385. No one




       4      Section 1385, subdivision (a) provides in pertinent part: “The judge or
magistrate may, either of his or her own motion or upon the application of the
prosecuting attorney, and in furtherance of justice, order an action to be dismissed.”

                                             10
discussed that section, and the People filed their motion to reinstate the complaint based

on the error in dismissing the complaint pursuant to Kellett and section 654.

       Moreover, People v. Andrade (1978) 86 Cal.App.3d 963 contradicts that

proposition. In Andrade, defendant brought a motion to dismiss a manslaughter charge

on the grounds of the prohibition against multiple prosecution (§ 654) and relied upon

Kellett. The motion for dismissal was granted. (Andrade, at pp. 967-968.) The People

appealed the dismissal pursuant to section 1238, subdivision (a)(8). (Andrade, at p. 968.)

The appellate court found that the dismissal under section 654 was erroneous as there was

no bar on multiple prosecution based on the facts of the case. (Andrade, at p. 968.) It

also rejected that the dismissal based on the defendant‟s motion was authorized under

section 1385. It found, “The motion which was made and granted was that of defendant

not that of the trial court. The statute makes no provisions for a defendant to move for

dismissal. [Citations.] Although without statutory provision, the trial court expressly

accepted, considered, and granted defendant‟s motion to dismiss. To recognize such

motion and order would judicially enlarge the scope of Penal Code section 1385 if the

dismissal were intended in furtherance of justice. The Legislature limited the right to

initiate the use of the authority of section 1385 to the People and to the court. Granting a

defendant‟s motion cannot be properly characterized as a dismissal of charges in

furtherance of justice as authorized by Penal Code section 1385. [Citations.]” (Andrade,

at pp. 973-974.)




                                             11
       Andrade has been cited with approval in subsequent cases. (See People v.

Hernandez (2000) 22 Cal.4th 512, 522; People v. Superior Court (Meraz) (2008) 163

Cal.App.4th 28, 54.) Here, defendant moved for dismissal, and the magistrate granted his

motion. Nothing in the record supports that dismissal was pursuant to section 1385.

Although the clerk‟s transcript cites to section 1385, the oral record contradicts the

minute order and controls. (See People v. Urke (2011) 197 Cal.App.4th 766, 779.)

       The People also contend that section 654 and Kellett do not authorize dismissal of

the complaint. Kellett bars multiple prosecution based on acts occurring during the same

course of conduct. In Kellett, the court concluded, “When . . . the prosecution is or

should be aware of more than one offense in which the same act or course of conduct

plays a significant part, all such offenses must be prosecuted in a single proceeding

unless joinder is prohibited or severance permitted for good cause. Failure to unite all

such offenses will result in a bar to subsequent prosecution of any offense omitted if the

initial proceedings culminate in either acquittal or conviction and sentence.” (Kellett,

supra, 63 Cal.2d at p. 827, fn. omitted.) This bar on multiple prosecutions certainly on its

face supports dismissal on these grounds.

       Moreover, Andrade contradicts such a proposition since it authorized a dismissal

of a charge pursuant to Kellett. (People v. Andrade, supra, 86 Cal.App.3d at p. 970.)

       The People also rely upon People v. Shrier (2010) 190 Cal.App.4th 400 for the

proposition that the dismissal was pursuant to section 1385. In Shrier, the magistrate

dismissed an action due to prosecutorial misconduct, and the superior court denied the


                                             12
motion to reinstate the complaint. (Shrier, at p. 405.) On appeal, the defendant argued

that the dismissal could not be a subject of a motion to reinstate the complaint because

the dismissal was not listed in section 871.5. However, the appellate court concluded that

the motion for dismissal was filed relying upon specific case law. The appellate court

noted that the case cited in the motion involved a dismissal in part based on section 1385,

which was listed in section 871.5. (Shrier, at p. 405.)

       Here, Kellett does not mention section 1385 as its basis for dismissal. Moreover,

as discussed, ante, there was no mention of section 1385 in the lower court, and

defendant‟s motion to dismiss cannot be considered a motion to dismiss under section

1385. Under no circumstances was this considered a motion pursuant to section 1385.

       Finally, the People contend that if the dismissal was not pursuant to section 1385,

section 1387 would not bar unlimited refilings of the same charge. The People never

sought to refile the charges in this case, so that issue is not squarely before this court, and

we need not address it.

       Here, the People filed an appeal from the superior court‟s decision to deny the

motion to reinstate the complaint pursuant to section 1238, subdivision (a)(9). We affirm

the superior court‟s conclusion that it did not have jurisdiction to hear the motion for

reinstatement of the complaint. The People, unlike in Williams, did not additionally file

an appeal from the magistrate‟s order. As such, we have no means by which to review

the merits of the magistrate‟s order. We must affirm the superior court‟s denial of the

motion for reinstatement of the complaint.


                                              13
                                            III

                                     DISPOSITION

       We affirm the denial of the People‟s section 871.5 motion to reinstate the

complaint.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                              RICHLI
                                                                               Acting P. J.

We concur:


KING
                          J.


MILLER
                          J.




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