Filed 3/27/15




                           CERTIFIED FOR PUBLICATION

                  APPELLATE DIVISION OF THE SUPERIOR COURT

                 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES



THE PEOPLE,                                           )       BR 051696
                                                      )
        Plaintiff and Appellant,                      )       (Airport Trial Court
                                                      )       No. 4WA22795)
        v.                                            )
                                                      )
DOUGLAS LEE McGOWAN,                                  )
                                                      )
        Defendant and Respondent.                     )       OPINION
                                                      )

        APPEAL from a judgment of the Superior Court of Los Angeles County, Airport
Trial Court, Jane A. Godfrey, Commissioner. Reversed.

        Marsha Jones Moutrie, City Attorney, City of Santa Monica; Terry L. White,
Chief Deputy City Attorney; and Jenna K. Grigsby, Deputy City Attorney, for Plaintiff
and Appellant.

        Ronald L. Brown, Public Defender of Los Angeles County; Albert J. Menaster,
Head Deputy Public Defender; and Stephanie Choi, Deputy Public Defender, for
Defendant and Respondent.

                                   *       *              *

                                            1
       Penal Code section 991 is the legislative safeguard that allows an in-custody
misdemeanant to require the arraigning magistrate to determine whether there is probable
cause to believe the defendant has committed a public offense. (Pen. Code, § 991, subd.
(a).) If the magistrate finds no such probable cause, the defendant is entitled to a
dismissal of the complaint. (Pen. Code, § 991, subd. (d).)1

       The issue presented is whether section 991 vests the trial court with the discretion
to dismiss only some of the charged offenses due to the absence of probable cause,
thereby allowing the complaint to survive with the charges that were not dismissed. We
conclude, if the court exercises its dismissal discretion under section 991, it must find
there is no probable cause to support any charged offense and dismiss the complaint in its
entirety. There are two fundamental reasons why the trial court is not vested with the
discretion under section 991 to dismiss only some of the charged offenses: (1) the statute
only authorizes the trial court to dismiss “the complaint”; and (2) such an application of
section 991 would be inconsistent with the purpose of the statute, i.e., to provide a
mechanism for screening the complaint to determine whether the misdemeanant‟s
confinement pending trial is constitutional.

       The trial court found there was probable cause to believe defendant committed
only one of three charged offenses in the complaint and consequently dismissed the two
remaining charges. Section 991 does not sanction such an order. Because the trial court
found there was probable cause to believe defendant committed a public offense, it was
required to deny the section 991 motion in totality. The trial court‟s order dismissing the
two charges pursuant to section 991 is reversed.

                                          BACKGROUND

       A misdemeanor complaint charged defendant and respondent Douglas Lee
McGowan with: (1) camping in a prohibited public place (Santa Monica Mun. Code, §
4.08.095, subd. (a)); (2) possession of a milk crate (§ 565); and (3) loitering under the

       1
           All further statutory references are to the Penal Code unless otherwise specified.
                                                   2
Santa Monica Municipal Pier (Santa Monica Mun. Code, § 3.36.100). At his
arraignment, defendant pled not guilty to the charges and made a motion to dismiss all
charges pursuant to section 991.

       The trial court considered the police report when assessing the merits of the
section 991 motion. The material facts are not in dispute. According to the
representations by counsel made at the section 991 motion, the police report indicated
defendant was seated under the Santa Monica Municipal Pier in the early morning hours
of May 9, 2014. He was wrapped in a blanket and surrounded by personal belongings,
including a chair, a military duffel bag and two milk crates. Defendant was arrested after
he refused to comply with several commands from Santa Monica police officers to leave
the area.

       While the motion was orally argued, an issue surfaced about whether section 991
allowed the trial court to dismiss only some charges, thereby leaving the complaint to
survive with the remaining charged offenses. Ultimately, the trial court rejected the
position taken by plaintiff/appellant (the People of the State of California) that the trial
court‟s authority to dismiss was limited to the complaint as a whole. The trial court
determined there was only probable cause to support the charge in count 2, and dismissed
counts 1 and 3.2 The People appeal the order dismissing counts 1 and 3.3

                                           DISCUSSION

Standard of Review and Rules of Statutory Construction

       On appeal, questions of law and statutory interpretation are reviewed de novo.
(People v. Kurtenbach (2012) 204 Cal.App.4th 1264, 1276.) “„Under settled canons of
statutory construction, in construing a statute we ascertain the Legislature‟s intent in


       2
       The People do not challenge the ruling that there was not probable cause to believe
defendant committed the crimes alleged in counts 1 and 3.
       3
           The trial court dismissed count 2 on the People‟s motion.
                                                  3
order to effectuate the law‟s purpose. [Citation.] We must look to the statute‟s words
and give them their usual and ordinary meaning. [Citation.] The statute‟s plain meaning
controls the court‟s interpretation unless its words are ambiguous.‟ [Citation.]” (People
v. Gonzalez (2008) 43 Cal.4th 1118, 1125-1126.) “„“If the words of the statute are clear,
the court should not add to or alter them to accomplish a purpose that does not appear on
the face of the statute or from its legislative history.” [Citations.]‟ [Citation.] Put
another way, the ascertainment of legislative intent must „begin with the language of the
statute itself. [Citation.] That is, we look first to the words the Legislature used, giving
them their usual and ordinary meaning. [Citation.] “If there is no ambiguity in the
language of the statute, „then the Legislature is presumed to have meant what it said, and
the plain meaning of the language governs.‟” [Citation.]‟ [Citations.]” (People v.
Herman (2002) 97 Cal.App.4th 1369, 1380-1381.)

The Unambiguous Language in Section 991

       In pertinent part, section 991 provides: “(a) If the defendant is in custody at the
time he appears before the magistrate for arraignment and, if the public offense is a
misdemeanor to which the defendant has pleaded not guilty, the magistrate, on motion of
counsel for the defendant or the defendant, shall determine whether there is probable
cause to believe that a public offense has been committed and that the defendant is guilty
thereof. [¶] . . . [¶] (c) In determining the existence of probable cause, the magistrate
shall consider any warrant of arrest with supporting affidavits, and the sworn complaint
together with any documents or reports incorporated by reference thereto, which, if based
on information and belief, state the basis for such information, or any other documents of
similar reliability. [¶] (d) If, after examining these documents, the court determines that
there exists probable cause to believe that the defendant has committed the offense
charged in the complaint, it shall set the matter for trial. [¶] If the court determines that
no such probable cause exists, it shall dismiss the complaint and discharge the
defendant.”



                                               4
       Section 991 expressly refers to the dismissal of the complaint: “If the court
determines that no such probable cause exists, it shall dismiss the complaint and
discharge the defendant.” (§ 991, subd. (d), italics added.) The statute further provides
for the refiling of the complaint after a motion to dismiss is granted under section 991:
“Within 15 days of the dismissal of a complaint pursuant to this section the prosecution
may refile the complaint.” (§ 991, subd. (e), italics added.) There is no language
authorizing either the dismissal of charges independent of the complaint, or the refiling of
a charge that was previously dismissed from a complaint that otherwise survived a
section 991 motion. The statute consistently references “the complaint,” not independent
charges within the complaint.

       It was for good reason that the Legislature implemented a procedure to ensure a
confined misdemeanant is held for trial only if there is probable cause to believe he or she
committed a crime charged in the complaint. The constitutional right to a judicial
determination of probable cause following arrest has its roots in Gerstein v. Pugh (1975)
420 U.S. 103. In that case, the United States Supreme Court held the Fourth Amendment
vests an in-custody defendant with the right to have a prompt4 postarrest determination of
whether there is probable cause to believe he or she committed “a crime.” (Id. at pp. 114,
119-120.)

       The California Supreme Court ultimately applied the Gerstein rule to California
misdemeanants held in custody. (In re Walters (1975) 15 Cal.3d 738, 747 (Walters).)
Section 991 did not exist at the time Walters was decided. Thus, “California procedures
governing the pretrial detention of those charged with misdemeanors . . . [did] not . . .
comport with . . . constitutional requirements . . . since the defendant [was] not afforded a
post-arrest judicial determination that probable cause exist[ed] for his continued
detention.” (Id. at p. 747.) This led to Walters‟s holding that, “unless waived, a judicial
determination of probable cause is required in every case where a defendant charged with

       4
        Generally speaking, a determination within 48 hours of arrest satisfies the promptness
requirement. (County of Riverside v. McLaughlin (1991) 500 U.S. 44, 56-57.)
                                                5
a misdemeanor is detained awaiting trial.” (Ibid.) In response to the requirements of
Walters, section 991 was enacted “to be a safeguard against the hardship suffered by a
misdemeanant who is detained in custody, by providing that a probable cause hearing
will be held immediately, at the time of arraignment, . . .” (People v. Ward (1986) 188
Cal.App.3d Supp. 11, 15, 17.)

       Section 991 protects a misdemeanant from unconstitutional pretrial confinement
when there is no probable cause to believe he or she has committed any offense. The
statute is not a mechanism to extricate certain unsupportable charges from an otherwise
legitimate complaint. It is simply an implementation of Gerstein‟s constitutional
requirement that a magistrate promptly determine there is probable cause to believe the
defendant committed “a crime” before forcing him or her to await trial while in custody.

       Under this rubric, in analyzing the section 991 motion, the trial court was required
to evaluate the complaint as a whole to determine whether there was probable cause to
believe defendant committed any charged offense. Given the trial court‟s finding that
there was probable cause to believe defendant committed a violation of section 565
(count 2), defendant was not subjected to unconstitutional confinement and the section
991 motion should have been denied without disturbing counts 1 and 3.

Section 991 Versus Section 995

       Defendant contends the rules of statutory construction require section 991 be
applied the same way as section 995. His position is not well taken.

       Section 995, subdivision (a), provides as relevant that “[an] indictment or
information shall be set aside by the court in which the defendant is arraigned, upon his
or her motion, in either of the following cases: [¶] (1) If it is an indictment: [¶] . . . [¶] (B)
That the defendant has been indicted without reasonable or probable cause. [¶] (2) If it is
an information: [¶] . . . [¶] (B) That the defendant has been committed without reasonable
or probable cause.” Thus, just as section 991 allows a misdemeanant to challenge a
misdemeanor complaint for lack of probable cause, section 995 allows a defendant
                                                6
accused of a felony to challenge an information or an indictment for lack of reasonable or
probable cause. That said, the differences between the two sections are significant.

       Although section 995 permits a defendant to challenge an indictment or
information as unsupported by probable cause, the language of section 995 does not
demonstrate it was designed to protect an accused from confinement unsupported by
probable cause. Unlike section 991, for example, there is nothing in section 995 limiting
its applicability to a defendant in custody. Rather, “„[the] obvious purpose of section 995
is to eliminate unnecessary trials and to prevent accusatory bodies . . . from encroaching
on the right of a person to be free from prosecution for crime unless there is some rational
basis for entertaining the possibility of guilt.‟ [Citation.]” (People v. McBride (1969)
268 Cal.App.2d 824, 828-829, italics added.)5

       The distinction between protecting a misdemeanant from unconstitutional
confinement resulting from a complaint that contains no offense supported by probable
cause and protecting an accused from prosecution for a crime unsupported by probable
cause is key to understanding the all-or-nothing wording of section 991 as compared to
section 995. Section 995 is entirely unrelated to the custodial status of the defendant,
much less protecting the accused from unconstitutional confinement pending trial. There
is no justification for applying section 991 the same way as section 995.

                                       DISPOSITION

       The order dismissing counts 1 and 3 is reversed.




       5
         In addition to challenging whether a defendant has been indicted or committed without
probable cause, a section 995 motion may seek to: (1) dismiss the whole or just parts of an
information (People v. Hudson (1917) 35 Cal.App. 234, 237); (2) screen out from an information
misdemeanor charges unsupported by probable cause (People v. Thiecke (1985) 167 Cal.App.3d
1015, 1018; Medellin v. Superior Court (1985) 166 Cal.App.3d 290, 292-295); and (3) dismiss
special circumstance allegations (Ghent v. Superior Court (1979) 90 Cal.App.3d 944, 954-955)
or penalty enhancement allegations (People v. Superior Court (1983) 33 Cal.3d 754, 760-761;
Huynh v. Superior Court (1996) 45 Cal.App.4th 891, 894-895).
                                              7
                 _________________________
                 KUMAR, J.

WE CONCUR.

                 _________________________
                 McKAY, P. J.



                 _________________________
                 JOHNSON (B.R.), J.




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