People v. Bautista CA4/3

Filed 1/22/14 P. v. Bautista CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Appellant, G048566

v. (Super. Ct. No. 13NF1165)

OMAR BAUTISTA, OPINION

Defendant and Respondent.

Appeal from a judgment of the Superior Court of Orange County, Carla Singer, Judge. Reversed. Tony Rackauckas, District Attorney, and Matt Lockhart, Deputy District Attorney, for Plaintiff and Appellant. Frank Ospino, Public Defender, Jean Wilkinson, Chief Deputy Public Defender, Mark S. Brown, Assistant Public Defender, and Alison Worthington, Deputy Public Defender, for Defendant and Respondent. * * *

The People filed a felony complaint alleging defendant violated Health and Safety Code section 11351 (possession of heroin for sale), Penal Code section 647, subdivision (f) (public intoxication), and Penal Code section 148.9, subdivision (a) 1 (identifying himself to a police officer under a false name). At a preliminary hearing, the magistrate found the evidence was insufficient to hold defendant to answer on the possession for sale charge. The magistrate permitted the People to amend the complaint to add a fourth charge for simple possession of heroin in violation of Health and Safety Code section 11350, subdivision (a), and held defendant to answer on the remaining charges. The People subsequently filed an information including not only the three charges for which defendant was held to answer, but also again alleging the previously dismissed possession for sale charge. Defendant filed a motion to dismiss the possession for sale charge under section 995. The court, believing itself bound by the magistrate’s resolution, granted the motion. The People appealed. We reverse. The court correctly concluded the magistrate had not made any express factual determinations that would bind the court, yet incorrectly concluded it could not revisit the magistrate’s ruling on the sufficiency of the evidence to hold defendant to answer. The latter finding is not binding on the court, and the court should have independently reviewed the evidence to determine its sufficiency. Having independently examined the evidence ourselves, we conclude there is sufficient evidence to charge defendant with possession for sale (Health & Saf. Code, § 11351).