Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Mariposa County. No. 7648 David L. DeVore, Judge.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Michael A. Canzoneri and Sean M. McCoy, Deputy Attorneys General, for Plaintiff and Appellant.
William I. Parks, under appointment by the Court of Appeal, for Defendant and Respondent.
OPINION
Ardaiz, P.J.
Respondent Yonker sought and was denied a continuance of his preliminary hearing, and was held to answer on a charge commonly referred to as child stealing (Pen. Code, § 278). He moved in superior court under section 995 to set aside the information on the grounds that he had been committed without reasonable or probable cause (§ 995, subd. (a)(2)(B)) and that he had not been legally committed by a magistrate (§ 995, subd. (a)(2)(A)). The superior court granted the motion. The court ruled that appellant had not been legally committed because he had been “denied a substantial right at the preliminary examination by the failure of the magistrate either to allow a continuance to secure the attendance of [a witness] or admit her prior testimony pursuant to Evidence Code § 1290, et seq.”
All further statutory references are to the Penal Code unless otherwise stated.
The People appeal from the superior court order setting aside the information. (See § 1238, subd. (a)(1) and People v. Alice (2007) 41 Cal.4th 668, 680.) The People contend that the court erred in concluding Yonker had been denied a substantial right. The People argue that the magistrate committed no abuse of discretion in refusing to continue the preliminary hearing. As we shall explain, we agree with the People and will reverse the superior court’s order granting Yonker’s motion and setting aside the information.
FACTS
The Pre-Preliminary Hearing
At a pre-preliminary hearing held on the morning of March 3, 2009, respondent Yonker moved for a continuance of the preliminary hearing, which was scheduled to be held that same day. Respondent argued that there was a critical witness for the defense, Tammy Crow, who was in Tennessee. A previous preliminary hearing had been held on January 14, 2009 and did not result in a holding order. A section 278 charge was then refiled against Yonker. Crow had been called as a witness for the People at the January 14 preliminary hearing. On March 2, 2009, counsel for respondent (Mr. Smothers) asked the deputy district attorney (Ms. Fletcher) if she would stipulate to using the transcript of Crow’s January 9 testimony at the March 3 preliminary hearing on the refiled charge. Fletcher “told him no because he hadn’t attempted to subpoena her.” Smothers then attempted to serve a subpoena on Crow at a local address, even though he knew Crow was no longer there. In fact, Mr. Smothers had spoken to Crow on the telephone several days earlier and had been told by Crow that Crow was in Tennessee. Smothers told the court that Crow was “a witness in another case,” and the prosecutor pointed out that the other case was a prosecution of Crow’s husband on a domestic violence charge. Smothers represented Crow’s husband on that charge, and Crow was the alleged victim.
The court noted that the March 3 preliminary hearing date had been set on February 19, and stated: “The difficulty I have is the fact that the prelim was set some two weeks ago or so and the subpoena wasn’t issued until yesterday. So on a timeliness issue, it appears you’ve got some difficulty convincing me that the matter should be continued because she was unable to be served.” The court denied the motion to continue the preliminary examination, but invited the defense to renew that motion after the People had presented their case at the preliminary hearing. After denying the motion the court stated: “That doesn’t mean I’m going to deny a request at the end of the People’s case by you, Mr. Smothers, to continue the balance of the prelim to attempt to subpoena her or to have filed appropriate declarations regarding her availability, whether or not her testimony from the prior hearing can be used.”
The Preliminary Hearing Testimony
On the afternoon of March 3 the preliminary hearing was held. Four witnesses testified at that hearing.
Angela B.
Angela B. owned a martial arts academy, also referred to as a “dojo,” in Mariposa County. On November 26, 2008 she was operating a “turkey brigade” at the dojo. The turkey brigade was an annual event in which “students of the academy raise both food and financial contributions and give out turkey meals for Thanksgiving” to needy people in the community. Other volunteers were present at the dojo for this event. Between noon and 2:00 p.m. on November 26 there were about 50 to 60 people at the dojo. One of the volunteers that day was respondent Yonker, who arrived there at about 1:15 or 1:30 p.m. One of the students, Rose Pate (also known as Jhang Me Pate) introduced Angela B. to Yonker. Angela B. assigned Yonker the task of delivering a couple of meals to a destination called Yaqui Gulch. Angela’s 6-year-old daughter, S.B., was with Angela at the dojo. S.B. worked a “station” at the turkey brigade in which she would put one of the food items into the bags of food. She had also been helping to carry the food to the vehicles for delivery.
A few minutes after Angela gave Yonker his assignment, she noticed that her daughter was nowhere to be seen. Angela spent the next 10 minutes looking for S.B. both inside and outside of the dojo. Angela asked other volunteers if they had seen S.B., and had some friends and employees help her look for S.B., but ultimately came to the conclusion that S.B. was no longer on the premises. Two of Angela’s students, Rose Pate and Becky Tilton, suspected S.B. might be with Yonker, and got into a car to go look for Yonker. Angela called one of the ladies to whom the meals were to be delivered in Yaqui Gulch, and learned that Yonker had not yet arrived there. Angela asked the woman, Amanda Zolman, to call her back if Yonker arrived there with a little girl.
Angela received a call from Pate, who told Angela that Pate and Tilton had seen Yonker’s car leaving Zolman’s driveway and that S.B. was with Yonker. Angela also received a call from Yonker (apparently made at the behest of Pate), who put S.B. on the telephone so she could talk to her mother. S.B. was crying. Angela then next saw S.B. when S.B. returned to the dojo with Pate and Tilton in Tilton’s vehicle. A law enforcement officer arrived right behind Tilton’s vehicle. S.B. was crying, and had a small porcelain doll with her that Angela had never given her. S.B. said Mr. Yonker had given her the doll and she wanted to keep it. Yonker arrived back at the dojo in his car, described by Angela as an old white Cadillac “limo,” right before Pate and Tilton returned with Angela’s daughter. Yonker walked up to Angela, handed her a box for the doll and said “You may want this.” Angela did not talk to Yonker because she wanted to avoid a confrontation with him and wanted to let law enforcement handle the matter.
About 20 minutes elapsed between the time Angela noticed her daughter was missing and the time S.B. returned to the dojo with Pate and Tilton. Angela had not given Yonker permission to take S.B. with him when he made the food deliveries. She had never given him permission at any time to take S.B. anywhere. Yonker had never asked Angela if he could take S.B. with him when he made the food deliveries. Nor had any third party asked Angela whether Yonker could take S.B. with him. Angela had not seen her daughter anywhere around Yonker and had not seen her get into his car.
On cross-examination Angela stated she became aware at some point that one of her students, a sheriff’s volunteer named Richard Perez, had been in Yonker’s car with Yonker and S.B. on Yonker’s food delivery trip. Angela estimated Perez’s age as “about 60.” Angela either spoke to Perez also when she spoke to Yonker on the telephone, or at least heard Perez’s voice over the phone during her phone conversation with Yonker.
Jason B.
The second witness at the preliminary hearing was Angela B.’s husband Jason. Jason testified that he arrived at the dojo on November 26 sometime after 2:00 p.m. and “towards the end of” the turkey brigade. When he arrived, he saw his daughter helping to load up cars with food. He was helping set up a gazebo outside because rain had started to fall. He did not know Park Yonker and had never met him. He and Angela at some point noticed that S.B. “wasn’t around,” and they started to look for her. Two cars had left on food deliveries, and he “kind of hoped” that S.B. was in the car of the person they knew. The other car was Yonker’s. Eventually he learned that Rose Pate had found S.B. with Yonker, and he saw S.B. get out of Tilton’s truck after Pate and Tilton returned with the little girl. She had a doll with her. He had never seen that doll before.
Jason had not given Yonker permission to take S.B. with him and, as has already been mentioned, did not know Yonker at all. He did not give anyone permission to take his daughter for a ride. He did not give his daughter permission to go for a ride with anyone else, nor had she asked for permission to go for a ride with anyone. Nor had any third party asked him for permission for the girl to go for a ride with Yonker or with anyone. After Yonker returned to the dojo, someone pointed Yonker out to Jason. This was the first time Jason had ever seen Yonker. Jason did not speak to Yonker, and let law enforcement handle the matter.
On cross-examination, Jason testified that there had been four or five kids and “a couple adults” involved in taking food and putting it into the delivery cars. He did not actually see Yonker’s car, however. Jason also testified that he and his daughter both knew Richard Perez, that Perez was a student at the dojo, and that he knew Perez was a retired volunteer sheriff.
On redirect examination Jason stated that he had not given Perez permission to take S.B. with Yonker and Perez in Yonker’s car, and reiterated that he had not given anyone permission to take S.B.
Deputy Mirelez
The third witness was Mariposa County Deputy Sheriff Rudy Mirelez.
Mirelez testified that Pate and Tilton flagged him down about a half mile from the dojo. Pate and Tilton had the little girl with them at that time. Pate told Mirelez that she wanted to report a kidnapping. Pate told Mirelez that a child had been taken from the dojo, and that Pate found the child by following the delivery route that had been given to Yonker. Pate had found Yonker’s car after the delivery had been made to Zolman’s house. Pate and Tilton honked and waved at Yonker for a minute or two, and when Yonker stopped at an intersection, Pate got out of the truck and ran up to Yonker’s car. Pate told Yonker’s passenger Richard Perez that he “should know better” and took the child out of Yonker’s car. There were three rows of seats in Yonker’s limo. The child had been in the back (third row) seat with Perez. Yonker was in the front in the driver’s seat.
Mirelez further testified that Pate told him she asked Yonker if Yonker had permission to take the child, and Yonker said twice “it was understood.” Pate told Yonker “No, you didn’t have permission.” Pate then took the child back to Tilton’s vehicle and they returned to the dojo, stopping when Pate flagged Mirelez down. Mirelez then followed Pate, Tilton and S.B. to the dojo. Yonker was already there when Mirelez arrived.
Yonker told Mirelez the girl asked to go along for the ride, and that the girl’s mother gave him permission. Later, and apparently after Mirelez spoke to others, he came back to Yonker and said “You didn’t have permission.” Yonker then said “they were lying.” Yonker then told Mirelez “the mother and the women who took the child gave me permission.” Yonker then told Mirelez “they came out to the car and stood around and gave him permission.” Then Yonker told Mirelez he (Yonker) never asked for permission, but that permission was just implied. Later, on December 6, Mirelez interviewed Yonker again and Yonker told a different story. He said Pate and the girl’s mother “practically almost opened the door.” Mirelez told Yonker that’s not true, Pate and the mother did not open the door, and Yonker told Mirelez “[t]hat they were lying.” Yonker then changed his story and said “the kids let themselves in.”
Under questioning by Yonker’s counsel, first on cross-examination and then as a defense witness, Mirelez testified that in the course of his investigation no one told him that Yonker put S.B. in the car. Someone did tell him that S.B. and two other children, M.P. and T.P., had been loading food into Yonker’s car and had climbed into the limo. The other two children were sons of another woman who was making food deliveries. The children had helped load the other woman’s car as well. Mirelez interviewed Perez, and Perez told him that Yonker had asked Perez to come along for the ride. Perez and Yonker knew each other and belonged to the same veteran’s organization. No one told Mirelez who the person was who opened the back door to Yonker’s limo to allow the children to get in. Perez told Mirelez that Yonker had given the doll to S.B. as a gift during the ride. Yonker handed it to Perez, who handed it to the child. Perez told Mirelez that the food recipient, Zolman, gave Yonker a message to call the dojo, and that Yonker did so. Yonker told the girl’s mother that the girl was with them and put the girl on the phone. Perez told Mirelez that he (Perez) knew the girl’s family. During one of Mirelez’s interviews with Yonker, Yonker told Mirelez that if a child was going to be riding with him, he was going to be sure that a sheriff’s volunteer came along with them. This is of course what happened, as Perez was a sheriff’s volunteer.
Richard Perez
The fourth and last witness was Richard Perez. He testified that he was a student at the dojo and a volunteer at the turkey brigade. When Yonker arrived at the dojo, Yonker said something to the effect of “I’ve got a limousine, does someone want to go?” Yonker “was talking to everybody in general there.” Perez knew that at an earlier point in time Yonker’s limo had been used as a taxicab. Yonker asked Perez directly “Do you want to go with me to make these deliveries?” and Perez agreed to do so. At some point Perez went out to the limo, and S.B. was already in it and already was buckled in. Perez did not see the girl’s mother or Pate out by the car, and did not see any other children in the car. Before Perez got in, he asked Yonker if Yonker had permission to take the child with them. Yonker told him that yes, he did. Perez asked Yonker “Who do you get the permission from?” Yonker told him “From the mother.” Perez asked “Where is the mother at?” Yonker answered “In there,” referring to the dojo. Perez knew that the child’s mother was in the dojo. Perez believed that Yonker had told him the truth, and Perez got into the limo. During the course of the ride, when the little girl “got real sad” and started to cry, Perez again asked him “Are you sure you got permission for her to be here?” and Yonker said that he did. Yonker then handed back the box containing the doll, which had been underneath the front passenger seat. Perez helped the girl to unwrap it because the girl was having trouble with the “hard plastic around it.” This calmed the girl down. Perez knew S.B. before the day of the turkey brigade because S.B. was a friend of Perez’s grandson. After Perez spoke to the little girl’s mother on the phone during the ride, Perez told Yonker “”You lied to me.” Yonker responded by telling Perez “that they were changing their mind, that they had given him permission.”
On cross-examination, Perez said that there were about 12 people in the dojo when Yonker said he had a limo and asked if anyone wanted to come along. One of these was S.B.’s mother. At some point he remembered seeing a woman and her two boys loading food into the second row of seats of Yonker’s limo, but he did not see S.B. with those boys at that time. When Perez and Yonker received a message to call the dojo, it was Perez who made the call, but both he and Yonker spoke to the girl’s mother on the phone.
The Motion to Continue
At the end of the presentation of evidence, defense counsel Smothers stated “I would like to make a case to continue the matter to call some witnesses.” He identified these witnesses as Tammy Crow and Tanya Pearson. He represented that Tanya Pearson “opened the door” to the limo and that Tammy Crow buckled S.B.’s seat belt, and that both women had seen S.B. and two little boys playing in the limousine. The prosecutor countered that Pearson had not previously testified that she opened the limo door, that in any event Pearson was available as a witness and the defense had not subpoenaed her, that the defense had not attempted to subpoena Tammy Crow until the day before the preliminary hearing, and that in any event testimony from Crow that Crow buckled the child in would not negate the evidence that Yonker took the girl without permission to do so. The prosecutor also stated: “I believe the testimony would show that [Crow] asked Yonker if he had permission, and he also told her he did. So she helped the little girl buckle herself in.”
The court noted that when the defense moved for a continuance earlier that same day, only witness Crow was mentioned, but “[n]ow I’m presented with the fact there are two similar witnesses, one of whom could have provided very similar testimony who’s always been available and who has not been subpoenaed.” Defense counsel Smothers then backtracked a bit by saying “I didn’t mean to imply that... I need Tanya Pearson here” and “I was making an offer of proof as to what... Tammy Crow would testify to.” The court then ruled: “All right, there having been two witnesses available to testify to that particular time frame as to what was going on, one being available and not having been subpoenaed, I’m going to deny the request to delay the preliminary further to attempt to get the witness [Crow] from Tennessee.” The court then heard arguments from counsel and held Yonker to answer, finding that there was sufficient proof for a section 278 charge “by a burden of proof required for a preliminary examination.”
The Motion to Set Aside the Information
As we mentioned at the outset, Yonker’s superior court section 995 motion argued both that he “had been committed without reasonable or probable cause” (§ 995, subd. (a)(2)(B)) and that he “had not been legally committed by a magistrate.” (§ 995, subd. (a)(2)(A).) The superior court’s order granting the motion relied on the latter ground only, and did not address Yonker’s contention that the evidence presented at his preliminary hearing did not establish reasonable or probable cause to hold him to answer to the section 278 charge.
DISCUSSION
Penal Code section 995 states in pertinent part:
“(a) … [T]he 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:
“(A) Where it is not found, endorsed, and presented as prescribed in this code.
“(B) That the defendant has been indicted without reasonable or probable cause.
“(2) If it is an information:
“(A) That before the filing thereof the defendant had not been legally committed by a magistrate.
“(B) That the defendant had been committed without reasonable or probable cause.”
The nature of appellate review of an order granting a motion to set aside an information depends upon whether the motion was based upon a contention that the defendant had not been legally committed by a magistrate (§ 995, subd. (a)(2)(A)) or upon a contention that the defendant had been committed without reasonable or probable cause (§ 995, subd. (a)(2)(B)). Yonker’s motion raised both contentions. The superior court’s ruling granting the motion relied on the section 995, subdivision (a)(2)(A) ground, but was silent about Yonker’s contention that he had been committed without reasonable or probable cause. Before we explain why we are of the view that the superior court erred in its conclusion that Yonker had not been legally committed, we should explain why we cannot rely on the superior court’s granting of the motion, and the court’s silence on the issue of whether there was reasonable or probable cause, as a basis upon which to affirm the granting of the motion even if Yonker was not denied a substantial right at his preliminary hearing and was “legally committed.” (§ 995, subd. (a)(2)(A).)
“‘A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.’” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) “‘“‘[A] ruling or decision, itself correct in law, will n to be disturbed on appeal merely because given for a wrong reason. If right upon any theory of law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion.’ [Citation.]” [Citation.]’ [Citation.]” (People v. Smithey (1999) 20 Cal.4th 936, 972.) This is because the appellate court “‘reviews the action of the lower court and not the reasons for its action’” and “‘there can be no prejudicial error from erroneous logic or reasoning if the decision itself is correct.’” (People v. Gibson (1987) 195 Cal.App.3d 841, 853; in accord, see also 9 Witkin Cal. Procedure (5th ed. 2008) Appeal, § 346, at pp. 397-398.)
The Magistrate’s Finding of Reasonable or Probable Cause Must be Upheld
The standard of appellate review of a superior court order setting aside an information for lack of reasonable or probable cause (§ 995, subd. (a)(2)(B)) is well established.
“An information will not be set aside if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it. [Citation.] ‘On a motion to set aside an information, the question of the guilt or innocence of the defendant is not before the court, nor does the issue concern the quantum of evidence necessary to sustain a judgment of conviction. The court is only to determine whether the magistrate, acting as a man of ordinary caution or prudence, could conscientiously entertain a reasonable suspicion that a public offense had been committed in which the defendant had participated.’ [Citation.] Neither the trial court in a section 995 proceeding [citations] nor a reviewing court on appeal therefrom [citations] may substitute its judgment as to the weight of the evidence for that of the committing magistrate. ‘Although the magistrate, in reaching his decision, may weigh the evidence, resolve conflicts, and give or withhold credence to witnesses, such a balancing of the evidence is not within the powers of a tribunal reviewing the magistrate’s order.’ [Citation.] Every legitimate inference that may be drawn from the evidence must be drawn in favor of the information. [Citation.]” (People v. Hall (1971) 3 Cal.3d 992, 996; in accord, see also Perry v. Superior Court (1962) 57 Cal.2d 276, 283-284, People v. Laiwa (1983) 34 Cal.3d 711, 718, and People v. San Nicolas (2004) 34 Cal.4th 614, 654.)
It bears emphasis that a showing of reasonable or probable cause presents a much less stringent evidentiary burden than the proof beyond a reasonable doubt standard of a criminal trial.
“[T]he burden on the prosecution before the magistrate is quite distinct from that necessary to obtain a conviction before a judge or jury. ‘Of course, the probable cause test is not identical with the test which controls a jury.… The jury must be convinced to a moral certainty and beyond a reasonable doubt of the existence of the crime charged in the information and of every essential element of that crime. But a magistrate conducting a preliminary examination must be convinced of only such a state of facts as would lead a man of ordinary caution or prudence to believe, and conscientiously entertain a strong suspicion of the guilt of the accused. [Citations.] In other words, “Evidence that will justify a prosecution need not be sufficient to support a conviction.… An information will not be set aside or a prosecution thereon prohibited if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it. [Citations.]”’ [Citations, italics added.]
“‘Within the framework of his limited role, … the magistrate may weigh the evidence, resolve conflicts, and give or withhold credence to particular witnesses. [Citation.] In other words, in assisting him in his determination of “sufficient cause,” the magistrate is entitled to perform adjudicatory functions akin to the functions of a trial judge. Yet the proceeding is not a trial, and if the magistrate forms a personal opinion regarding the guilt or innocence of the accused, that opinion is of no legal significance whatever in view of the limited nature of the proceedings.’ [Citation.]” (People v. Slaughter (1984) 35 Cal.3d 629, 637.)
Furthermore, the California Supreme Court has stated: “Any credibility determination to be made at the probable cause stage... is a gross and unrefined one.... ‘[T]o reject the prosecution evidence at the probable cause stage, either the evidence presented must be inherently implausible, the witnesses must be conclusively impeached, or the demeanor of the witnesses must be so poor that no reasonable person would find them credible. Thus, if the prosecution presents evidence a reasonable person could accept over that presented by the defense, probable cause should be found.” (Cooley v. Superior Court (2002) 29 Cal.4th 228, 257-258.) As one court has succinctly stated, “[t]he showing required at a preliminary hearing is exceedingly low.” (Salazar v. Superior Court (2000) 83 Cal.App.4th 840, 846.)
Applying this well established standard of review to the matter before us, we conclude that even if the superior court’s silence on the issue of probable cause, coupled with its granting of Yonker’s section 995 motion, were to be construed as an implied finding that the magistrate’s holding order was not supported by probable cause, we would have to reverse the order setting aside the information even if the order was based on such an implied finding.
Section 278 states:
“Every person, not having a right to custody, who maliciously takes, entices away, keeps, withholds, or conceals any child with the intent to detain or conceal that child from a lawful custodian shall be punished by imprisonment in a county jail not exceeding one year, a fine not exceeding one thousand dollars ($1,000), or both that fine and imprisonment, or by imprisonment in the state prison for two, three, or four years, a fine not exceeding ten thousand dollars ($10,000), or both that fine and imprisonment.”
The crime defined in section 278 “is against the parent and not against the child.” (People v. Simmons (1936) 12 Cal.App.2d 329, 332; in accord, see also People v. Campos (1982) 131 Cal.App.3d 894, 899, and In re Michele D. (2002) 29 Cal.4th 600, 614.) For this reason it does not matter whether the child willingly goes with the defendant. (People v. Moore (1945) 67 Cal.App.2d 789, 792; People v. Grever (1989) 211 Cal.App.3d Supp. 1, 7.) Nor does a showing of probable cause to hold Yonker to answer on a section 278 charge require any evidence of any intent to harm the child. There was evidence that Yonker took the child, that he did not have a right to custody of the child, and that he had the intent to detain the child from a lawful custodian of the child (her mother Angela), and the magistrate so noted in making his ruling holding Yonker to answer. An intent to detain the child does not require any intent to use force against the child. “The word ‘detain’ does not necessarily include the idea of force, but includes delaying, hindering, retarding, etc.” (People v. Moore, supra, 67 Cal.App.2d at p. 791.) The only other element on which evidence of probable cause was required to be shown was whether Yonker acted maliciously. (See CALCRIM No. 1250, and People v. Casagranda (1941) 43 Cal.App.2d 818, 821.) As the magistrate expressly noted, the significant issue in the case was whether Yonker took the child “maliciously.” (§ 278.) “The word ‘maliciously’ as used in the statute does not... have a narrower meaning than as defined in... the Penal Code.” (People v. Simmons, supra, 12 Cal.App.2d at p. 332.) “The words ‘malice’ and ‘maliciously’ import a wish to vex, annoy, or injure another person, or an intent to do a wrongful act, established either by proof or presumption of law.” (§ 7, subd. (4).) “Actual hatred or intent to injure is rarely required; the element of malice in most criminal statutes is satisfied by the intentional doing of the act without justification or excuse or mitigating circumstances (‘an intent to do a wrongful act’).” (Witkin, Cal. Criminal Law (2000) Elements, § 11 at p. 213; in accord, see also People v. Salcido (1968) 263 Cal.App.2d 1, 6.)
The magistrate concluded that there was sufficient evidence to show probable cause that Yonker acted with malice. He observed “one has to know that when you don’t know a six-year-old child at all, period, you don’t know the parents at all, period, you don’t just drive away with that child.” Also, the magistrate noted that Yonker’s contradictory statements made to Deputy Mirelez, first stating that he had permission to take the child, then saying that permission was implied, support an inference that Yonker knew he needed permission from a parent to take the child before driving away with the child, and therefore acted wrongfully in taking the child without obtaining such permission. In sum, there was sufficient evidence to support the magistrate’s finding of probable cause, and the superior court could not have justifiably found otherwise.
Respondent Yonker Was Legally Committed
When a defendant makes a motion to set aside the information on the ground that the defendant had not been legally committed by a magistrate (§ 995, subd. (a)(2)(A)), judicial review of the commitment does not involve the issue of whether there was reasonable or probable cause for the commitment. The focus is instead on whether the defendant has been denied a substantial right at the preliminary hearing. “It is settled that denial of a substantial right at the preliminary examination renders the ensuing commitment illegal and entitles a defendant to dismissal of the information on a timely motion.” (People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 523; see also 4 Witkin, Cal. Criminal Law (3d ed. 2000) Pretrial Proceedings, §§230 & 231.) As to what constitutes the denial of a substantial right at a preliminary hearing, the California Supreme Court has stated:
“Section 995 provides that an information shall be set aside upon the defendant’s motion if the defendant was committed without probable cause or if ‘before the filing [of the information] the defendant had not been legally committed by a magistrate.’ (§ 995, subd. (a)(2)(A).)
“As we have explained, the term ‘legally committed’ pertains to the preliminary examination and the order holding the defendant to answer. ‘“An information, of course, will not be set aside merely because there has been some irregularity or minor error in procedure in the preliminary examination. [Citation.] But where it appears that, during the course of the preliminary examination, the defendant has been denied a substantial right, the commitment is unlawful within the meaning of section 995, and it must be set aside upon timely motion. [Citations.]”’ (Jennings v. Superior Court (1967) 66 Cal.2d 867, 874 [59 Cal.Rptr. 440, 428 P.2d 304].)
“ … We have explained, in the context of a magistrate’s error in failing to exercise his or her inherent authority to dismiss pursuant to section 1385, that generally a denial of substantial rights occurs only if the error ‘reasonably might have affected the outcome.’ (People v. Konow (2004) 32 Cal.4th 995, 1024-1025 [12 Cal.Rptr.3d 301, 88 P.3d 36]; see also Jennings v. Superior court, supra, 66 Cal.2d at p. 875; Moon v. Superior Court (2005) 134 Cal.App.4th 1521, 1534 [36 Cal.Rptr.3d 854]; People v. Pennington (1991) 228 Cal.App.3d 959, 964-965 [279 Cal.Rptr. 85] [because defense counsel’s potential conflict of interest could not have affected the preliminary examination, it did not constitute a denial of a substantial right].) By this language, we do not mean that the defendant must demonstrate that it is reasonably probable he or she would not have been held to answer in the absence of the error. Rather, the defendant’s substantial rights are violated when the error is not minor but ‘reasonably might have affected the outcome’ in the particular case. (People v. Konow, supra, 32 Cal.4th at p. 1024, italics added.)” (People v. Standish (2006) 38 Cal.4th 858, 882-883.)
In Jennings v. Superior Court, supra, 66 Cal.2d 867, the court ruled that the right to present witnesses and the right to cross-examine witnesses constitute such substantial rights. (Id. at pp. 874-881; see also § 865 (cross-examination of witnesses) and § 866 (presentation of defense witnesses).) This case does not involve any issue regarding cross-examination of witnesses, but instead presents the issue of whether the magistrate denied Yonker a substantial right when it refused to grant him a continuance of the preliminary hearing to take steps to secure the attendance of Tammy Crow, who was then in Tennessee, as a defense witness. As we shall explain, we conclude that the magistrate did not deny Yonker a substantial right.
Prior to the passage of Proposition 115 on June 5, 1990, section 866 stated: “When the examination of witnesses on the part of the people is closed, any witnesses the defendant may produce must be sworn and examined.” The passage of Proposition 115 amended section 866 to read:
“(a) When the examination of witnesses on the part of the people is closed, any witness the defendant may produce shall be sworn and examined.
“Upon the request of the prosecuting attorney, the magistrate shall require an offer of proof from the defense as to the testimony expected from the witness. The magistrate shall not permit the testimony of any defense witness unless the offer of proof discloses to the satisfaction of the magistrate, in his or her sound discretion, that the testimony of that witness, if believed, would be reasonably likely to establish an affirmative defense, negate an element of a crime charged, or impeach the testimony of a prosecution witness or the statement of a declarant testified to by a prosecution witness.
“(b) It is the purpose of a preliminary examination to establish whether there exists probable cause to believe that the defendant has committed a felony. The examination shall not be used for purposes of discovery.
“(c) This section shall not be construed to compel or authorize the taking of depositions of witnesses.”
Prior to the passage of Proposition 115 “the preliminary hearing previously had been recognized as an opportunity for discovery and trial preparation.” (People v. Eid (1994) 31 Cal.App.4th 114, 129.) There was an “expansive concept of the preliminary hearing as a discovery and trial preparation device, allowing counsel the opportunity to ‘fashion’ their impeachment tools for use in cross-examination at trial, to preserve testimony favorable to the defense, and to provide the defense ‘with valuable information about the case against the accused, enhancing its ability to evaluate the desirability of entering a plea or to prepare for trial.’” (Whitman v. Superior Court (1991) 54 Cal.3d 1063, 1081.) Now, however, “‘the very purpose of the hearing has been considerably narrowed” and “[i]t is the purpose of a preliminary examination to establish whether there exists probable cause to believe that the defendant has committed a felony.’” (Id. at pp. 1080-1081.) “[T]he scope of relevant evidence at the preliminary hearing has been substantially narrowed. Evidence that falls outside the statutory parameters of section 866, subdivision (a), is irrelevant.” (People v. Eid, supra, 31 Cal.App.4th at p. 130.) “Section 866, subdivision (a), requires the magistrate, upon a request by the prosecutor, to seek from the defense an offer of proof showing the relevance of the anticipated testimony before the defense may call a witness at the preliminary hearing. The section vests in the magistrate discretion to limit the accused’s right to call witnesses at the preliminary hearing and, in effect, defines relevant evidence as testimony which ‘would be reasonably likely to establish an affirmative defense, negate an element of a crime charged, or impeach the testimony of a prosecution witness or the statement of a declarant testified to by a prosecution witness.’ (§ 866, subd. (a).)” (People v. Eid, supra, 31 Cal.App.4th at pp. 129-130.)
The prosecutor at the preliminary hearing took the position that Crow’s proffered testimony, if the continuance were granted to present it, did not meet the admissibility requirements of section 866, subdivision (a). The defense asserted that Tammy Crow would testify that Crow “actually seat-buckled her in -- seat-buckled (S.B.) in, and that Mr. Yonker was not adjacent to where they were when that was happening....” There was no attempt by the defense to explain how this proffered testimony “if believed, would be reasonably likely to establish an affirmative defense, negate an element of a crime charged, or impeach the testimony of a prosecution witness or the statement of a declarant testified to by a prosecution witness.” (§ 866, subd. (a).) Yonker of course did not testify at the preliminary hearing, but his defense appears to have been that under the circumstances, particularly his prior announcement in the dojo that he had a limo and that others were welcome to ride with him, he reasonably believed that he had permission to take the girl with him on the deliveries to Yaqui Gulch, a destination described by Deputy Mirelez as being “[a]pproximately ten miles” from the dojo, and that he therefore acted without malice in taking the girl with him. No witness testified that Yonker buckled the girl in, or that he had personally placed her into his limo. The evidence was that Yonker found her in there and drove off with her, taking his acquaintance Perez with them. According to the defense’s own offer of proof, Yonker “was not adjacent to where they were when that [Crow’s seat-buckling of the child] was happening.” If this is an argument that Yonker did not see who belted or buckled the girl in, Yonker fails to explain how the magistrate was required to view this state of affairs as something “reasonably likely to... negate the element of malice.” (§ 866, subd. (a).)
Both parties told the magistrate that Crow had testified at a previous preliminary hearing which did not result in a holding order against Yonker. The prosecutor did not dispute that Crow had buckled the girl into the limo seat, but told the magistrate: “I believe the testimony would show that she [Crow] asked Mr. Yonker if he had permission, and he also told her he did. So she helped the little girl buckle herself in. And I say so what?... [T]hat doesn’t vitiate the elements of the offense nor does it … present an affirmative defense.” The parties do not dispute the fact that Crow had been called by the prosecution, not by the defense, at the previous preliminary hearing. Defense counsel did not quibble with this characterization of Crow’s testimony. The court asked defense counsel if he had “any further argument regarding the witness?” Counsel replied “I’d submit on that issue, Your Honor.”
The superior court’s order granting Yonker’s motion stated in part: “[T]his court holds that the defense offer of proof as to witness Crow was sufficient to satisfy the requirements of Penal Code § 866 because the evidence of both malice and intent elements of the charge were entirely circumstantial and the circumstances of the child’s entry into the Defendant’s vehicle and the presence of adult witnesses to the Defendants conduct in respects of the child’s departure would certainly be part of the circumstantial calculus.” The test, however, is whether the proffered evidence “if believed, would be reasonably likely to... negate an element of a crime charged....” (§ 866, subd. (a).) Merely being “part of the circumstantial calculus” is not sufficient for admissibility. (§ 866, subd. (a), and People v. Eid, supra, 31 Cal.App.4th 114.)
The superior court found fault with the language used by the magistrate in denying the defense request for a continuance. The magistrate stated: “All right, there having been two witnesses available to testify to that particular time frame as to what was going on, one being available and not having been subpoenaed, I’m going to deny the request to delay the preliminary further to attempt to get the witness from Tennessee.” The superior court ruling stated that “the magistrate simply accepted the prosecutor’s characterization of Crow’s prior testimony and her assertion that such testimony would have been the same as that of an available witness (Pearson) who had also testified at the previous examination, and on that basis denied the defense request(s).” While the language used by the magistrate is not a model of clarity, we do not think the superior court’s ruling is an accurate characterization of it. The prosecutor did not dispute the defense’s characterization of Crow’s prior testimony. The prosecutor disputed the defense’s characterization of Pearson’s prior testimony. The prosecutor stated “the offer of proof as to what the Court could expect to hear regarding Tanya Pearson is incorrect.” The defense made an offer of proof that Pearson would testify that she opened the limo door for children to get in. The prosecutor said “the offer of proof is incorrect” and “Tanya never said she opened the door, in my recollection.” Shortly thereafter the prosecutor repeated “the offer of proof of Counsel is simply not true” and then began reading a portion of the prior Pearson testimony, which did not include anything about Pearson having opened a door. The prosecutor then said: “So for Counsel to represent she’s there and opened the door, unless he can point to somewhere in that, it certainly contradicts my recollection of events and certainly the tone of her testimony.” This all became moot when defense counsel told the court “I didn’t mean to imply that... I need Tanya Pearson here.”
The magistrate was understandably concerned with why defense counsel wanted a continuance to secure a witness from Tennessee if in fact an available witness the defense had not subpoenaed could testify to much of the same information. The court asked defense counsel: “Tanya Pearson could essentially -- she testified at the [first] preliminary examination?” Defense counsel then attempted to explain why a continuance was needed to secure Crow’s testimony. Defense counsel stated that Pearson “didn’t know who did the seat belt” and that at the time Crow seat-belted S.B. “Mr. Yonker wasn’t right there.” It was after this that the magistrate made his ruling. In this context, especially considering that the prosecutor made the express argument that defense offer of proof did not satisfy the requirements of section 866, subdivision (a), we think the magistrate’s ruling is fairly viewed as a determination that the defense offer of proof, if believed, was not “reasonably likely to... negate an element of a crime charged.” (§ 866, subd. (a).) And we cannot conclude that the magistrate abused his discretion in reaching that determination. “[D]iscretion is abused only if the court exceeds the bounds of reason, all of the circumstances being considered.” (People v. Stewart (1985) 171 Cal.App.3d 59, 65; in accord, see also People v. Clair (1992) 2 Cal.4th 629, 655, People v. Cross (2005) 127 Cal.App.4th 63, 73, and People v. Giminez (1975) 14 Cal.3d 68, 72.) Here, of course, it was the magistrate who exercised discretion, and neither the superior court nor this court can substitute its decision for that of the magistrate. The key issue was whether Yonker acted maliciously by taking the child to Yaqui Gulch without permission, not whether he or someone else had fastened the little girl’s seat belt before Yonker drove away with her. The magistrate could therefore reasonably take the view that continuing the preliminary hearing to allow the defense to present Crow’s testimony was unnecessary because that testimony was not reasonably likely to negate an element of the charged section 278 offense.
The superior court also faulted the magistrate for not admitting the prior testimony of Crow pursuant to Evidence Code section 1290 et seq., but nowhere in the course of the preliminary hearing did defense counsel offer a transcript of that testimony into evidence and attempt to establish that it satisfied the requirements of the Evidence Code. The magistrate never made a ruling excluding it because it was never offered into evidence. There was no error.
DISPOSITION
The superior court’s order granting respondent’s section 995 motion and setting aside the information is reversed. The superior court is directed to enter an order denying the motion.
WE CONCUR: Hill, J.Poochigian, J.