Trial court erred in granting Penal Code section 995 motion because there was probable cause to believe defendant entered into a conspiracy with other gang members to obstruct justice by lying during police interview. Garcia was charged with participating in a criminal street gang and conspiracy to obstruct justice (Pen. Code, § 182, subd. (a)(5)) based on evidence he entered into an agreement with fellow gang members to lie to police and obstruct a homicide investigation. Garcia moved to dismiss the information pursuant to section 995. The trial court granted the motion, finding that the conspiracy charge required evidence that Garcia was an accessory after the fact or obstructed a peace officer in the performance of his duties. The prosecution appealed. Held: Reversed. Pursuant to section 995, a court properly sets aside all or part of an information upon finding that the defendant had been committed without probable cause, which is established by a state of facts that would lead a reasonable person to entertain a strong suspicion of the defendant’s guilt. The showing required at this stage “is exceedingly low” and an information should be set aside only when there is a total absence of evidence to support a necessary element of the offense charged. A conspiracy to obstruct justice does not need to be founded upon a separate, specific criminal statute to survive a section 995 motion to dismiss. Instead, there must be some showing the defendant’s actions would obstruct justice. Here, the prosecution presented evidence that, prior to being interviewed by police, Garcia agreed with a fellow gang member that he would tell police he did not know anything about the murder and that he would report back after the interview. During two police interviews, Garcia denied knowing other gang members and an ex-girlfriend he was dating at the time of the homicide. Garcia affirmatively lied to officers for the purpose of shielding a fellow gang member from further scrutiny, and the evidence showed that his actions obstructed justice.
Despite the failure to include reporter’s transcripts from three of the four hearing dates for the section 995 motion, the record on appeal was adequate for a review of an order granting the motion. Garcia argued that the prosecution’s appeal must be rejected due to the failure to provide an adequate record for review. The section 995 motion was argued to the trial court on four separate dates, but the record on appeal contained only the reporter’s transcript from the final dispositive hearing. It is well settled that, on appeal, the burden is on the appellant to provide an adequate record, and in numerous situations appellate courts have refused to reach the merits of an appellant’s claims because no reporter’s transcript of a pertinent proceeding or a suitable substitute was provided. In this case, however, the record was adequate because the standard of review in appeals from orders granting section 995 motions makes the trial court’s ruling, as well as counsel’s arguments leading up to that ruling, almost entirely irrelevant. An appellate court reviews the determination of the magistrate holding the defendant to answer based on the evidence adduced at the preliminary hearing. Accordingly, the record on appeal was adequate for review.
The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/H043537.PDF