People v. Slaughter

677 P.2d 854, 35 Cal. 3d 629, 200 Cal. Rptr. 448, 1984 Cal. LEXIS 158

• Court: California Supreme Court
• Decided: March 22, 1984
• Docket: Crim. 22896
• Status: Published

Opinions

Opinion

BROUSSARD, J.

The People appeal from an order of the superior court denying their motion under Penal Code section 871.5¹ to reinstate a charge accusing defendant of the murder of Russell Bradstreet. This appeal requires us to determine the standard of review of a magistrate’s ruling when that ruling is challenged by a motion for reinstatement under section 871.5, a question of first impression in this court.

The Legislature enacted section 871.5 in 1980 to provide an alternative method for review of a magistrate’s decision dismissing a criminal charge. Under section 739, the prosecutor could file an information including dismissed charges when the defendant had been held to answer on a transactionally related charge;² the defendant could then challenge the information by motion under section 995. (We refer to this form of judicial review as section 739 review.) Section 871.5 provided a new avenue of review—a motion in superior court to reinstate the dismissed charge—applicable whenever there was no transactionally related charge.

Under section 739 review, when the magistrate makes express findings of fact, the reviewing court is bound by such findings if supported by substantial evidence. If however, the magistrate renders no findings, the reviewing court may find the dismissal erroneous as a matter of law whenever the evidence provides a rational basis for believing that the defendant is guilty of the offense. As we shall explain, we believe the Legislature adopted the same standard for section 871.5 review when it provided in section 871.5 for motions to reinstate charges erroneously dismissed “as a matter of law” (§ 871.5, subd. (b)). Applying this standard to the present case, we conclude that the superior court erred in denying the People’s motion to reinstate the murder charge.

I.

By complaint filed in August of 1980, defendant Terry L. Slaughter was accused of murder (§ 187) and possession of a concealable firearm by an ex-felon (§ 12021).³ At his preliminary hearing, the following evidence was presented:

Russell Bradstreet worked as a uniformed security guard and carried a .38 caliber pistol. In the early morning hours of July 22, 1980, Bradstreet was on duty in a marked security car, parked so as to be available to respond to calls for security service. At some time prior to 5 a.m., Bradstreet was killed by a .22 caliber bullet that entered the back of his neck.

Sergeant Michael Sitterud of the Oakland Police Department’s homicide detail arrived at the scene at 5:15 a.m. Bradstreet’s security car was parked at a vacant gas station on the corner of 73d Avenue and East 14th Street in Oakland. The driver’s door was open, and the window rolled down. Bradstreet’s body lay half in and half out of the car. His pistol and wallet were missing. The car’s radio was on, and a hand microphone that connected to the radio was lying on the pavement by the body. The window of the passenger door had a bullet hole through it, and glass fragments were scattered on the ground nearby. Sergeant Sitterud concluded that the hole had resulted from a shot fired from the direction of a five-foot high cinder block wall which separated the gas station from a residence. There was no indication that either the home or the station had been burglarized.

Twelve days later, on August 3, defendant was arrested near Santa Barbara. He was driving southbound on Highway 101 in a stolen car. Bradstreet’s pistol was discovered under the right front seat of this car.

Sergeant Sitterud interrogated defendant about the Bradstreet homicide the following day. Defendant talked freely, and the questioning was repeated on tape. The tape recording was admitted into evidence at the preliminary hearing.

In his recorded statement, defendant said that he came from Venice, California, to the Oakland home of his cousin about two weeks before the homicide. He met Edward Forward and they began doing “four or five a night burglaries.” Forward would generally drive his car to the Oakland hills, select the homes to be burglarized, and then carry out the entries himself, leaving defendant in the car as lookout. Defendant said that he feared Forward and felt he had little choice but to cooperate in the burglaries.

In the early morning of July 22, Forward drove defendant to a home on 73d Avenue “that we were supposedly going to burglarize.” Forward parked at the curb, “got out of the car, went to the trunk of the car, got something out of the trunk of his car, and went along the side of a house.” Defendant was acting as lookout “like I normally do.” He did not follow Forward’s movements because “I know what he was going to do, what I thought he was going to do, I thought he was going to do a burglary. . . . And that’s what I thought he was doing, going to the side of the house to check it out.”

A short while later, defendant heard “a couple of shots—maybe three, I’m not sure—but I heard a couple of shots.” He thought “somebody had shot at [Forward], you know, from him checking out the window or something.” Then Forward “came running back from the side of the house to the back of the car, threw something in the trunk, slammed it down, got in the car, and sped toward [the apartment he shared with defendant’s cousin].” Forward seemed “panicky like” but never would talk about the shots. He did not show defendant any wallet or identification. Defendant learned about the shooting from news broadcasts later that day.

About a week after the homicide, Forward showed defendant a snub-nosed .38 pistol. He did not talk much about the gun, he “just told me that the gun was hot and that it came from a dead man.” Defendant admitted that he and Forward “did some burglaries” after July 22, although defendant stated he did so out of fear.

On August 2d, Forward threatened defendant. Defendant then telephoned his mother in Venice in an attempt to obtain a ticket out of Oakland. When this failed, he stole Forward’s car late at night and headed south. When the car broke down, defendant abandoned it and stole another. He transferred to the stolen car not only his own belongings but also some of Forward’s property from the trunk, including fur coats and a .38 pistol. Defendant drove this second car until he was stopped and arrested south of Santa Barbara.

In the course of his statement to Sergeant Sitterud, defendant indicated he had seen a .22 caliber rifle, another pistol, and considerable stolen property in the apartment where Forward was living. Subsequently, Sitterud obtained a search warrant for the premises. The execution of the search warrant at Forward’s apartment turned up a pistol and most of the stolen property that defendant had mentioned. In addition, the police found “parts of the .22 rifle [defendant] had talked about.”

After hearing all the evidence, the magistrate held defendant to answer for the weapon offense (§ 12021) but refused to bind him over for murder. The magistrate stated’ “I think any murder liability would be a vicarious liability as pointed out in [defense counsel’s] memorandum, but even that is stretching too far. I do not see where there could be a holding order on the [murder] charge.”

The information filed in superior court alleged only a violation of section 12021, but the prosecutor also filed a “Motion to Compel Reinstatement of Complaint” pursuant to section 871.5. This recently enacted statute permits the prosecution, under specified circumstances,⁴ to “make a motion in the superior court ... to compel the magistrate to reinstate [a dismissed] complaint or a portion thereof ....”(§ 871.5, subd. (a).) The statute provides that the “superior court shall hear and determine the motion on the basis of the record of the proceedings before the magistrate” and that “[t]he only ground for the motion shall be that, as a matter of law, the magistrate erroneously dismissed the action or a portion thereof.” (Id.., subds. (c.) and (b).)

In his motion to compel reinstatement of the murder charge against defendant, the prosecutor in the present case contended that section 871.5 should be interpreted similarly to section 739, so as to permit reinstatement whenever there exists a reasonable interpretation of the evidence which would support the charge. The prosecutor noted that defendant had confessed to conspiring with Forward to commit burglary; he argued that the evidence was reasonably susceptible of the view that Forward killed Bradstreet while attempting to perpetrate that burglary, in which case Forward would be guilty of murder under the felony-murder rule (§ 189), and defendant would be liable as an accomplice (see People v. Medina (1974) 41 Cal.App.3d 438, 452 [116 Cal.Rptr. 133], and cases there cited). The superior court nevertheless denied the motion to compel reinstatement, and the prosecution appealed.

II.

We begin by reviewing the settled principles defining the role of the committing magistrate and the scope of judicial review of a magistrate’s dismissal order under section 739. Section 872 provides that if “it appears from the [preliminary] examination that a public offense has been committed, and there is sufficient cause to believe the defendant guilty thereof, the magistrate must make or indorse on the complaint an order” holding the defendant to answer for the offense. “The term ‘sufficient cause’ is generally equivalent to ‘reasonable and probable cause,’ that is, 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.” (People v. Uhlemann (1973) 9 Cal.3d 662, 667 [108 Cal.Rptr. 657, 511 ]; see Williams v. Superior Court (1969) 71 Cal.2d 1144, 1147 [80 Cal.Rptr. 747, 458 P.2d 987]; People v. Hampton (1981) 116 Cal.App.3d 193, 200 [172 Cal.Rptr. 25].)

Thus the 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.]’ ” (Taylor v. Superior Court (1970) 3 Cal.3d 578, 582 [91 Cal.Rptr. 275, 477 P.2d 131]; Rideout v. Superior Court (1967) 67 Cal.2d 471, 474 [62 Cal.Rptr. 581, 432 P.2d 197]; 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.” (People v. Uhlemann, supra, 9 Cal.3d 662, 667, fn. omitted.)

In short, the magistrate is not a trier of fact. He does not decide whether defendant committed the crime, but only whether there is “ ‘some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it.’” (People v. Orin (1975) 13 Cal.3d 937, 947 [120 Cal.Rptr. 65, 533 P.2d 193].) If the record shows strong and credible evidence of defendant’s guilt, the magistrate may reasonably assume the possibility of his guilt. Thus in many cases he will not find it necessary to resolve all conflicts in the evidence, in order to find probable cause to hold the defendant for trial. The magistrate’s power to decide factual disputes exists to assist him in his determination of sufficient cause (People v. Uhlemann, supra, 9 Cal.3d 662, 667); if he can determine that issue without resolving factual conflicts, he may do so.⁵

The character of judicial review under section 739 depends on whether the magistrate has exercised his power to render findings of fact. If he has made findings, those findings are conclusive if supported by substantial evidence. (People v. Salzman (1982) 131 Cal.App.3d 676, 684 [182 Cal.Rptr. 748]; see Jones v. Superior Court (1971) 4 Cal.3d 660, 667 [94 Cal.Rptr. 289, 483 P.2d 1241]; De Mond v. Superior Court (1962) 57 Cal.2d 340, 345 [19 Cal.Rptr. 313, 368 P.2d 865].) If he has not rendered findings, however, the reviewing court cannot assume that he has resolved factual disputes or passed upon the credibility of witnesses. A dismissal unsupported by findings therefore receives the independent scrutiny appropriate for review of questions of law. The cases arising under section 739 explain this distinction.

In Jones v. Superior Court, supra, 4 Cal.3d 660, the magistrate found that the victim consented to intercourse with the defendants, and reduced the charge from forcible rape to statutory rape. We held that the prosecution could not include a count of forcible rape in the information. We explained: “[H]ad the magistrate herein found that Miss H. did not consent to intercourse with petitioners, or made no finding on that issue, the district attorney might properly have disputed the magistrate’s characterization of the offense involved as ‘statutory’ rape, and included in the information a count for nonconsensual rape. However, since the magistrate found, as a matter of fact, that Miss H. consented to intercourse and that no acts of oral copulation or sodomy occurred, it follows that those offenses were not shown by the evidence to have been committed . . . and should not have been included in the information.” (P. 666.) (Second italics added.)

In People v. Beagle (1972) 6 Cal.3d 441 [99 Cal.Rptr. 313, 492 P.2d 1], the magistrate dismissed a count charging defendant with setting a fire at Lewin’s Furniture Store, stating that the evidence was “too weak” because it failed to show motive. (P. 457.) The prosecutor filed an information which included the dismissed count, and defendant was convicted on the charge. On appeal, we stated that “ [i]f the magistrate had found as a matter of fact that defendant had not started the Lewin’s fire, the district attorney might well have been bound by his determination. [Citing Jones v. Superior Court, supra, 4 Cal.3d 600.] The district attorney, however, need not accept the magistrate’s legal conclusion.” (Pp. 457-458.) Since the magistrate made no express findings, we did not inquire whether substantial evidence might support a finding, but instead held that “the magistrate’s ruling as to the Lewin’s count was patently erroneous as a matter of law. ...” (P. 458, italics added.)

In Pizano v. Superior Court (1978) 21 Cal.3d 128 [145 Cal.Rptr. 524, 577 P.2d 659], the victim of a robbery was killed when Pizano’s codefendant used the victim as a shield from gunfire. The magistrate dismissed the murder charge against defendant on the ground that the prosecution had failed to prove malice. Our opinion noted that “an offense not named in the commitment order may not be added to the information if the magistrate made factual findings which are fatal to the asserted conclusion that the offense was committed. . . . When, however, the magistrate either expressly or impliedly accepts the evidence and simply reaches the ultimate legal conclusion that it does not provide probable cause . . ., such conclusion is open to challenge by adding the offense to the information.” (P. 133.) We then held that the magistrate’s determination “was a legal conclusion, not a finding of fact as that term is used in Jones. Therefore, the People were entitled to challenge his action by recharging the murder count.” (Pp. 133-134.)

Finally in People v. Farley (1971) 19 Cal.App.3d 215 [96 Cal.Rptr. 478], the magistrate dismissed two counts charging sale of marijuana and LSD, saying that “ ‘after the hearsay is stricken, the evidence that goes to those is insufficient.’” (P. 219.) The prosecution nevertheless included those counts in the information. Affirming defendant’s conviction, the Court of Appeal emphasized that “the magistrate did not make factual findings” (p. 221), and concluded that his ruling finding lack of probable cause was in error (pp. 221-222).

In summary, cases arising under section 739 recognize a clear distinction: findings of fact must be sustained if supported by substantial evidence, but a finding of lack of probable cause, unsupported by any factual findings, is reviewed as an issue of law. Absent controlling factual findings, if the magistrate dismisses a charge when the evidence provides a rational ground for believing that defendant is guilty of the offense, his ruling is erroneous as a matter of law, and will not be sustained by the reviewing court.

The question before us in the present case is whether section 871.5 envisions the same standard of review, or, as defendant claims, contemplates a more limited review under which the magistrate’s dismissal order must be sustained if supported by any reasonable view of the evidence. The section itself expresses no standard of review, but implies one by providing that the prosecutor can move to reinstate a dismissed charge only on the ground that it was “as a matter of law, . . . erroneously dismissed.” (§ 871.5, subd. (b).)

This is familiar language. It is in fact the very language used by the courts to describe section 739 review. (See People v. Beagle, supra, 6 Cal.3d 441, 458.) It clearly distinguishes between review of findings of fact under a substantial evidence test and review of conclusions drawn from an uncontroverted record as questions of law.⁶

“It is a generally accepted principle that in adopting legislation the Legislature is presumed to have had knowledge of existing domestic judicial decisions and to have enacted and amended statutes in the light of such decisions as have a direct bearing upon them.” (Buckley v. Chadwick (1955) 45 Cal.2d 183, 200 [288 P.2d 12], fn. omitted; Estate of McDill (1975) 14 Cal.3d 831, 839 [122 Cal.Rptr. 754, 537 P.2d 874]; see Stafford v. Realty Bond Service Corp. (1952) 39 Cal.2d 797, 805 [249 P.2d 241]; Favalora v. County of Humboldt (1976) 55 Cal.App.3d 969, 973 [127 Cal.Rptr. 907].) This principle leads us to presume that the 1980 Legislature, when it enacted section 871.5, was aware both of the standard of review employed by courts under section 739, and the language by which the courts described that standard. We conclude that the Legislature, in referring to error “as a matter of law,” did not intend to enact a new and different standard, but to incorporate the section 739 standard for review of dismissal orders.

This conclusion comports with the purpose of section 871.5. In enacting this section, the Legislature established a new method of reviewing a magistrate’s ruling as an alternative to section 739 review. The choice between these alternatives depends upon whether the magistrate found probable cause to hold the defendant on a transactionally related offense—a factor irrelevant to the purpose of judicial review under either section. Adoption of a stricter standard of review for section 871.5 would serve no purpose we can discern, and by denying the People an adequate remedy to review a dismissal in cases without a transactionally related crime, would undermine the balance of fairness which formed the basis for the Legislative act.⁷

In fact under the standard proposed by defendant—that the reviewing court must sustain a dismissal if supported by any reasonable factual ground even if the magistrate has made no findings—the People could avoid the risk of arbitrary dismissal only by presenting evidence sufficient to negate any and all reasonable inferences of innocence. This is an imposing burden, and one entirely inconsistent with the established doctrine that the People need only show “ ‘some rational ground for assuming the possibility’ ” of defendant’s guilt (People v. Orin, supra, 13 Cal.3d 937, 947). Indeed an evidentiary record sufficient to negate all reasonable inferences of innocence would suffice to prove guilt beyond a reasonable doubt. This clearly is not the appropriate burden of proof at the preliminary hearing.

Defendant contends that the standard of review he proposes is the logical consequence of cases, such as Jones v. Superior Court, supra, 4 Cal.3d 660, which permit the magistrate to exercise an adjudicatory function. If this reasoning were sound—and it is not—it would apply equally to cases arising under section 739. After all, a defendant is entitled to the magistrate’s independent determination of sufficient cause even if there exists some transactionally related offense. In our opinion the cases in question hold only that when the magistrate exercises his . adjudicatory function and renders findings of fact, the reviewing court must respect this determination when it is supported by substantial evidence. But when the magistrate does not render findings of fact, the reviewing court should not have to search the record to see if it can conceive of some rational finding or factual inference which might support the magistrate’s ruling, and then search it again to see if substantial evidence supports this finding or inference.⁸

In conclusion, neither the language, the legislative history, nor the purpose of section 871.5 requires us to adopt the standard of review proposed by the defendant. To the contrary, each support the proposition that the Legislature intended the same standard of review under both sections 871.5 and 739: a decision of the magistrate dismissing charges, absent findings of fact, is erroneous as a matter of law if the evidentiary record discloses a rational basis for believing the defendant guilty of the charged crime.

III.

There remains the matter of applying this standard in the present case. This does not present a difficult problem. The record presents no conflicts in the evidence and the magistrate rendered no findings of fact. He merely stated briefly that “any murder liability would be a vicarious liability . . ., but even that is stretching too far. I do not see where there should be a holding order on the 187 charge.”

This language is not very different from that used by the magistrates in Beagle and Farley. In the former case the magistrate dismissed a charge because the evidence was “too weak” (see 6 Cal.3d 441, 457); in the latter because the evidence was “insufficient” (see 19 Cal.App.3d 215, 221). In section 739 cases the courts view such language as raising issues of law. (See Beagle, 6 Cal.3d at p. 458; Farley, 19 Cal.App.3d at pp. 221-222.)

In accord with the section 739 precedents, we review the magistrate’s order in this case as raising an issue of law; whether the evidentiary record contained facts sufficient to show sufficient cause to hold defendant for murder. The record here shows without dispute that defendant and Forward conspired to commit a burglary, that a security guard was robbed and killed near the site of the burglary, and that defendant acquired possession of the guard’s gun. Even giving full credit to defendant’s statement, it shows only that Forward, not defendant, actually killed the guard, and that defendant may not know the reason or circumstances of the killing. The reasonable inference remains that Forward killed the guard in perpetration of the burglary which he and defendant planned. It is clear that, in the language of People v. Uhlemann, there exists “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.” (9 Cal.3d 662, 667.) On such a record “the committing magistrate must hold the defendant to answer” (People v. Orin, supra, 13 Cal.3d 937, 947); failure to do so constitutes error “as a matter of law” (People v. Beagle, supra, 6 Cal.3d 441, 458).

The order denying the motion to reinstate that portion of the complaint charging defendant with murder is reversed.

Mosk, J., Kaus, J., Grodin, J., and Richardson, J.,

* concurred.

1 All statutory citations are to the Penal Code.

2 Section 739 provides that when an individual has been committed by a magistrate for at least one felony, the information filed in superior court “may charge the defendant with either the offense or offenses named in the [magistrate’s] order of commitment or any offense or offenses shown by the evidence taken before the magistrate to have been committed.” (Italics added.) However, this section only permits the charging of dismissed offenses which are transactionally related to counts named in the commitment order. (Parks v. Superior Court (1952) 38 Cal.2d 609 [241 P.2d 521].)

3 The complaint also included enhancement allegations that are irrelevant to this appeal.

4 Currently, a section 871.5 reinstatement motion is authorized “[w]hen an action [has been] dismissed by a magistrate pursuant to Section 859b, 861, 871, 1008, 1381, 1381.5, 1385, 1387, or 1389, or a portion thereof [has been] dismissed pursuant to those same sections which may not be charged by information under the provisions of Section 739 ....’’ (§ 871.5, subd. (a).)

In the present case, the murder charge against defendant was dismissed pursuant to section 871, and the prosecutor determined that the charge could not be refiled pursuant to section 739 because it was not transactionally related to the weapon offense for which respondent was held to answer.

5 Defendant suggests that this view of the magistrate’s role is inconsistent with Hawkins v. Superior Court (1978) 22 Cal.3d 584, 587 [150 Cal.Rptr. 435, 586 P.2d 916], in which we held a defendant indicted by grand jury has the right to a preliminary hearing, and Jennings v. Superior Court (1967) 66 Cal.2d 867, 880 [59 Cal.Rptr. 440, 428 P.2d 304], which held that at a preliminary hearing a defendant has the right to cross-examine prosecution witnesses and present defense witnesses. We find no inconsistency. None of the benefits to defendant of a preliminary hearing set forth in Hawkins require that a magistrate resolve factual conflicts unnecessary to a determination of probable cause. Jennings can be reconciled with our later decisions in People v. Uhlemann, supra, 9 Cal.3d 662 and People v. Orin, supra, 13 Cal.3d 937, 947, on the basis that defendant’s cross-examination and affirmative evidence bears upon the question whether the record shows a reasonable basis to suspect defendant’s guilt. Prosecution evidence which before cross-examination may seem to raise a reasonable suspicion may well, after the defense has finished, be seen as too insubstantial to justify holding defendant for trial. Thus Jennings held that denial of the right to cross-examine and to call witnesses is prejudicial error. It did not hold that whenever the defense contests the prosecution case, the magistrate must back away from the standard of reasonable suspicion of guilt and decide as a question of fact what crimes, if any, the defendant committed.

6 Defendant cites People v. Salzman, supra, 131 Cal.App.3d 676, the only case to discuss the standard of review under section 871.5. Salzman involved a review of a dismissal following a section 1538.5 suppression hearing in which the magistrate made express findings of fact. The Salzman court tested such findings by substantial evidence review, and upheld the ruling. Nothing in the case suggests any distinction between review under section 871.5 and section 739.

7 As described in Vlick v. Superior Court (1982) 128 Cal.App.3d 992, 999 [180 Cal.Rptr. 742]: “Having allowed the magistrate to dismiss a felony complaint which dismissal serves as an effective bar to further prosecution, the Legislature provided a means by which the People could obtain immediate review of the magistrate’s dismissal if it was based on an issue of law .... This procedure is fair to both the defendant and the People in that defendant is relieved from repeated filings and the People are afforded an avenue for overturning the magistrate’s dismissals erroneous as a matter of law.”

8 Defendant also points to the legislative history of the 1982 amendments to section 871.5. Those amendments, introduced as Senate Bill No. 1743 by Senator Holmdahl on March 11, 1982, retained language providing for a reinstatement motion on the ground that “as a matter of law, the magistrate erroneously dismissed the action or a portion thereof.” Senator Holmdahl proposed to add additional language to the section which, among many other things, would have amended subdivision (c) to read as follows: “The superior court shall hear and determine the motion on the basis of the record of the proceedings before the magistrate, and, if the matter proceeded to preliminary examination and was discharged for any reason after proofs were heard, shall order reinstated any offense of which any reasonable construction of the evidence adduced at the hearing admits, and shall order the magistrate to issue an order of commitment as to the offenses reinstated. If the matter was dismissed for any reason before the preliminary hearing was completed, the superior court shall order reinstated any offense or offenses dismissed because of an error of law. In either case, the superior court shall rule without attempting to reconcile conflicts or judge the credibility of the witnesses. In either case none but express findings of fact by the magistrate shall affect the superior court’s review of the evidence. If the motion is litigated to decision by the prosecutor, the prosecution is prohibited from refiling the dismissed action, or portion thereof.” (Italics in original, to indicate proposed changes in the statute.) The bill was revised extensively and frequently during its journey through the Legislature, and the italicized language does not appear in the final version.

The italicized language is a complete and exact exposition of the standard of review employed by courts under section 739. If it had been proposed but rejected as a substitute for language restricting review to error as a matter of law, the defendant could reasonably argue that “matter of law” implied a different and narrower standard. But when the language appears in successive paragraphs of the same version of the bill, a different conclusion is warranted. Apparently the author of the bill saw no inconsistency between review limited to error as a matter of law, and section 739 review. The language of the bill made it clear that if the prosecutor moved for reinstatement on the ground that the magistrate erred as a matter of law, the superior court should grant that motion if any reasonable construction of the evidence would support the charges. In this setting, the subsequent elimination of the italicized language does not prove the Legislature intended to reject the section 739 standard of review; it may have simply eliminated an unnecessary detailed exposition of that standard.

Retired Associate Justice of the Supreme Court sitting under assignment by the Chairperson of the Judicial Council.