Filed 2/26/15 P. v. Super. Ct. CA1/3
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,
     Petitioner,
v.

THE SUPERIOR COURT OF SONOMA                                             A143887
COUNTY,
     Respondent;                                                         (Sonoma County
                                                                          Super. Ct. No. SCR 644465)
CHRISTIAN SANCHEZ-CABALLERO,
     Real Party in Interest.



         Petitioner, the People, filed a complaint charging real party (Sanchez-Caballero) in
interest with several counts of residential burglary and robbery and related enhancements
arising from an armed home invasion. After amending the complaint to include a gang
enhancement, a preliminary hearing was held after which real party was held to answer
on the charges in the first-amended complaint. No finding was made on the gang
enhancement. Petitioner subsequently filed an amended information which alleged
additional kidnapping charges arising from the armed home invasion. Real party in
interest filed a motion to dismiss the kidnap charges, pursuant to Penal Code section 995.
After a hearing on the motion, the superior court dismissed the kidnap charges on the
theory that Sanchez-Caballero was deprived of adequate notice. Under the California
Penal Code, the prosecution is allowed to amend an information where, as here, the


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amended charges are both based upon evidence adduced at the preliminary hearing and
are transactionally related to the charge(s) for which the defendant was held to answer;
thus, the trial court erred in dismissing the kidnap counts. Therefore, utilizing the
expedited Palma procedure, we reverse the superior court’s order dismissing those
charges. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171.)

                 FACTUAL AND PROCEDURAL BACKGROUND
       On March 24, 2014 Sanchez-Caballero was charged by complaint with three
counts of robbery, in violation of Penal Code section 211 and one count of residential
burglary, in violation of Penal Code section 459 (burglary). The complaint also included
enhancements pursuant to Penal Code sections 213, subd. (a)(1)(A) (first degree
robbery) and 12022.53, subd. (b) (fire arms enhancement). On July 14, 2014, the
complaint was amended to allege a street gang enhancement pursuant to Penal Code
section 186.22, subd. (b)(1)(c).
       A preliminary hearing was held in August 2014, on the alleged charges and the
following evidence was adduced: On May 15, 2013 at approximately 10 p.m. Jessica
Ramirez, Danielle Uekert, and John Gonzalez were home, watching television, when the
doorbell rang. Ramirez answered the door and saw someone dressed in a pizza delivery
outfit. Assuming her roommate Gonzalez had ordered pizza, she unlocked the metal gate
allowing entry into the apartment and returned to the couch. As she sat down, she
observed two men armed with guns enter her apartment. One of them put a gun to her
head and ordered her to get up. The second man pointed a gun at Gonzalez and ordered
him to get up. Ramirez, Uekert, and Gonzalez, were ordered by the gunmen to go into
the bathroom — a distance of approximately 18 feet from the couch. When they reached
the bathroom, they were told to undress, and instructed to crouch down in the bathtub
facing the tile, which they did. One intruder remained in the bathroom, gun drawn,
making sure they stayed facing the wall. The second intruder left the bathroom and
thereafter Ramirez heard what sounded like someone opening drawers, pulling out their
contents, and opening doors. At some point, the intruders took Ramirez from the

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bathroom and ordered her to open a safe located in one of the rooms in the apartment.
She complied. The gunman took everything in the safe which included jewelry, money,
and bullets. They also took guns Ramirez had. Ultimately, one of the men returned
Ramirez to the bathroom and placed her back in the bathtub. The gunman then took
Gonzalez from the bathroom to his room. It sounded to Ramirez like Gonzalez was being
hit and asked about where he had jewelry. He was then brought back into the bathroom.
After wiping down the bathroom floor with towels, the two men closed the door and
instructed the victims that they could come out after counting to 30. Later, when
Ramirez left the bathroom the two men were gone.
       At the conclusion of the preliminary hearing, Sanchez-Caballero was held to
answer on all counts, but not on the gang enhancement. On August 19, 2014, however,
the People filed an information alleging three additional counts — violations of
kidnapping, pursuant to Penal Code section 209. These counts were not reflected in the
complaint at the time of the preliminary hearing. Sanchez-Caballero moved to dismiss
the kidnap charges, pursuant to Penal Code section 995. After several hearings on the
motion, the trial court dismissed all kidnap charges.
       In granting the motion to dismiss, the superior court indicated that its decision was
“very close.” It initially found that there “certainly” was “asportation involved . . . there
was clear movement.” The superior court determined that the preliminary hearing
focused on whether this was a gang crime, not on whether there was sufficient evidence
to uphold the kidnapping charge. Relying on People v. Manning (1982) 133 Cal.App.3d
159, it concluded that the defense did not have notice of the kidnapping charge and had
no opportunity to mount a defense to that charge; thus it granted the Penal Code section
995 motion to dismiss the three kidnapping charges.
       On January 7, 2015 the People filed the instant petition seeking to compel the
superior court to vacate its order dismissing the added kidnapping counts and to issue a
new order denying Sanchez-Caballero’s motion to dismiss. On January 9 we requested
informal briefing and gave notice pursuant to Palma v. U.S. Industrial Fasteners, Inc.,


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supra, 36 Cal.3d 171, 180, that we were considering the issuance of a peremptory writ in
the first instance.

                                       DISCUSSION
I. THE STANDARD OF REVIEW.
         The standard of review, which both the superior court and we are to employ in
ruling on Penal Code section 995 petitions, is well settled. “An appellate court must
apply the same standard of review here as the superior court does initially in deciding a
section 995 motion based only upon a preliminary hearing transcript. Both courts act as
reviewing courts, hence every legitimate factual inference must be drawn to uphold the
magistrate’s decision. (Caughlin v. Superior Court (1971) 4 Cal.3d 461, 464-465.)”
(People v. Superior Court (Maciel) (1982) 134 Cal.App.3d 893, 897, fn. 5.) “Every
legitimate inference that may be drawn by the reviewing court from the evidence must be
drawn in favor of the information,” and we review the preliminary hearing transcript
directly. (Caughlin v. Superior Court, supra, 4 Cal.3d at pp. 464-465.) Factual findings
by the magistrate are to be affirmed if they are supported by substantial evidence; in the
absence of factual findings, we independently review the evidence to determine whether
it supports the amended information. (People v. Childs (1991) 226 Cal.App.3d 1397,
1406.)

II.      AMENDING THE INFORMATION TO INCLUDE THE KIDNAPPING
         CHARGES WAS PROPER.
         Penal Code section 739, allows the People to file an information against a
defendant, charging him either with the offense(s) contained in the order of commitment
or “any offense or offenses shown by the evidence taken before the magistrate to have
been committed.” (Pen. Code § 739, italics added.) Furthermore, Penal Code section
1009 states, in pertinent part, “[A]n indictment, accusation or information may be
amended by the district attorney, without leave of court at any time before the defendant
pleads or a demurrer to the original pleading is sustained.” In People v. Manning, supra,
133 Cal.App.3d 159, our colleagues in the Fifth District delineated the scope of

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amendments authorized pursuant to Penal Code section 739. The Manning court held
that “unless the magistrate makes factual findings to the contrary, the prosecutor may
amend the information after the preliminary hearing to charge any offense shown by the
evidence adduced at the preliminary hearing provided the new crime is transactionally
related to the crimes for which the defendant has previously been held to answer.”
(Manning, supra, 133 Cal.App.3d at p. 165.) It further held that because the defendant
and defense counsel were present at the preliminary hearing, they had “notice of the
potential charges he might have to face.” (Id. at p. 167.) Adequate notice is provided by
the nature of the evidence itself, rather than the crimes originally charged. (See People v.
Donnell (1976) 65 Cal.App.3d 227, 233 [“it is not the complaint but the totality of the
evidence produced at the preliminary hearing which notifies the defendant of the
potential charges he may have to face in the superior court”].)
       The kidnapping counts alleged here are clearly transactionally related to the
alleged robbery/burglary counts because they arose out of the same event. (See People v.
Bartlett (1967) 256 Cal.App.2d 787, 790-791.) No party disputes that.
       Moreover, the evidence adduced at the preliminary hearing establishes that
defense counsel was aware of the potential kidnapping charges. For example, during his
cross-examination of witness Ramirez, counsel inquired as to the distance the victims
were required to move from the couch, where they were sitting, to the bathroom, where
they were forced to go. The distance the victims were compelled to move is relevant to
proof of asportation, an element of simple or aggravated kidnapping. (People v. Bell
(2009) 179 Cal.App.4th 428, 435 [discussing asportation as an element of kidnapping];
People v. Lujano (2014) 229 Cal.App.4th 175, 184 [listing elements of burglary]; People
v. Gomez (2008) 43 Cal.4th 249, 255 [listing elements of robbery].)1 Thus, based on the


1
       Robbery does include an element of asportation; however, for purposes of a
robbery, asportation involves carrying property away — not the movement of the victims.
(See Gomez, supra, 43 Cal.4th at p. 255.) Here, defense counsel was inquiring how far
the victims had to move.

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evidence presented at the preliminary hearing, real party in interest had notice of the
potential for kidnapping charges to be filed.
       Our conclusion is buttressed by the superior court’s initially ruling on the motion
wherein the court stated (1) there was asportation — clear movement — (2) that the
victims were made to feel vulnerable, and (3) that there is a reasonable inference that the
victims were moved to an area where they were less likely to be observed by others.
Thus, there was sufficient evidence adduced at the preliminary hearing to support notice
of and the elements of the kidnap charges alleged in the amended information.2
       Because the prosecution is entitled to amend the information to charge new crimes
that are transactionally related to the crime(s) for which the defendant was originally held
over and because there was sufficient evidence presented at the preliminary hearing to
support the kidnapping charges, real party in interest’s motion to dismiss should have
been denied.

                                     CONCLUSION
       The Palma procedure is appropriate “when petitioner’s entitlement to relief is so
obvious that no purpose could reasonably be served by plenary consideration of the
issue.” (Ng v. Superior Court (1992) 4 Cal.4th 29, 35; see also Lewis v. Superior Court
(1999) 19 Cal.4th 1232, 1236-1273 & 1240-1241.) Here, the record and applicable law
are clear and the Palma procedure is appropriate to expedite the resolution of this case.
Consequently, the superior court is ordered to vacate its November 7, 2014 order in
People v. Sanchez-Caballero, Sonoma County Superior Court Case No. SCR 644465
dismissing the three kidnapping charges and to issue a new order denying the motion to
dismiss those counts.



                                                    _________________________

2
       Other than the claim that the evidence shows that the asportation of the victim was
merely incidental to the robbery, real party does not challenge any other elements of the
alleged kidnapping.

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                                Jenkins, J.


We concur:


_________________________
McGuiness, P. J.


_________________________
Pollak, J.




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