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Filed 7/27/17 P. v. Carter CA2/2
`
`NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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`has not been certified for publication or ordered published for purposes of rule 8.1115.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
`
`SECOND APPELLATE DISTRICT
`
`DIVISION TWO
`
`
`
`Plaintiff and Respondent,
`
`v.
`
`THE PEOPLE,
`
`
`
`
`
`KEITH REAGAN CARTER,
`
`
`
`
`
` B271107
`
` (Los Angeles County
` Super. Ct. No. BA424194)
`
`
`Defendant and Appellant.
`
`
`
`APPEAL from a judgment of the Superior Court of Los
`
`Angeles County. Gregory Dohi, Judge. Affirmed.
`
`
`
`Jared G. Coleman, under appointment by the Court of
`
`Appeal, for Defendant and Appellant.
`
`
`
`Xavier Becerra, Attorney General, Gerald Engler, Chief
`
`Assistant Attorney General, Lance E. Winters, Assistant
`
`Attorney General, William H. Shin and Alene M. Games, Deputy
`
`Attorneys General, for Plaintiff and Respondent.
`
`
`
`
`
`

`

`Defendant and appellant Keith Reagan Carter (defendant)
`
`appeals from his conviction of evading a peace officer causing
`
`injury, challenging the trial court’s reopening of the preliminary
`
`hearing to hear additional testimony. Defendant also requests
`
`review of the in camera hearing on his Pitchess discovery
`motion.1 We find no merit to defendant’s contention, and after
`reviewing the sealed transcript of the in camera Pitchess hearing
`
`we conclude that the trial court properly exercised its discretion
`
`in finding no discoverable materials. We thus affirm the
`
`judgment.
`
`BACKGROUND
`
`Defendant was charged in a one count information with
`
`evading a peace officer causing injury, in violation of Vehicle
`
`Code section 2800.3, subdivision (a). It was alleged that
`
`defendant had suffered a serious or violent felony conviction,
`
`within the meaning Penal Code sections 667, subdivisions (b)
`through (i), and 1170.122 (the “Three Strikes” law), and for
`purposes of section 667, subdivision (a)(1). It was further alleged,
`
`for purposes of section 667.5, subdivision (b), that defendant had
`
`suffered a prior conviction for which he served a prison term, and
`
`failed to remain free of custody for a period of five years.
`
`A jury found defendant guilty as charged. Defendant
`
`waived his right to a jury trial on the prior conviction allegations,
`
`and the trial court found them to be true. On March 17, 2016,
`
`the trial court sentenced defendant to a total term of 19 years in
`
`
`1
`See Pitchess v. Superior Court (1974) 11 Cal.3d 531
`(Pitchess); People v. Jackson (1996) 13 Cal.4th 1164, 1220; Penal
`Code sections 832.5 and 832.7; Evidence Code sections 1043
`through 1045.
`
` 2
`
`
`All further statutory references are to the Penal Code,
`unless otherwise indicated.
`
`2
`
`

`

`prison, comprised of the high term of seven years, doubled as a
`
`second strike, plus five years pursuant to section 667, subdivision
`
`(a). Defendant filed a timely notice of appeal from the judgment.
`
`Preliminary hearing testimony
`
`
`
`At the preliminary hearing, Los Angeles Police Officer
`
`Rodolfo Sarmiento testified that on April 28, 2014, he was driving
`
`a marked police vehicle with his partner, Officer Alex Abundis,
`
`when they passed a parked black TrailBlazer SUV. A check of
`
`the license plate number suggested the car was stolen, so Officer
`
`Sarmiento made a U-turn to return to the car. As the officers
`
`came within a block of it, the SUV began moving. As the officers
`
`followed, the TrailBlazer sped up, failed to stop at a stop sign,
`
`and continued to accelerate. When Officer Sarmiento was able to
`
`catch up to the SUV, he activated the overhead lights and siren,
`
`and notified dispatch. In response to the lights and siren the
`
`SUV accelerated, causing pedestrians to scramble out of its way.
`
`At one point, the SUV crossed into the opposite lane, causing
`
`oncoming cars to brake suddenly. The SUV then turned and
`
`continued travelling at about 45 to 50 miles per hour in a 35
`
`miles per hour zone. The SUV reached speeds of 65 to 75 miles
`
`per hour, and failed to stop for several stop signs. Finally, when
`
`the driver of the SUV attempted a sharp turn, the vehicle collided
`
`with a house, flipped over twice, and landed on its passenger
`
`side.
`
`
`
`The officers stopped, got out of their car, and ran toward
`
`the SUV, where the driver was seen making his way to the back
`
`of the vehicle, and then unsuccessfully attempting to exit through
`
`the jammed rear hatchback door. Another occupant of the vehicle
`
`was in the front passenger seat, unable to move. After Officer
`
`Abundis called for ambulances, the passenger was extracted,
`
`screaming in pain, with obvious injuries to her forehead and right
`
`3
`
`

`

`arm. Both defendant and his passenger were then transported to
`
`the hospital.
`
`The entire pursuit lasted about a minute and a half,
`
`covering a distance of about 1.2 miles. At times the police car
`
`was directly behind the SUV, with its red forward facing lights
`
`activated. A police airship was overhead during the pursuit, and
`
`other police units arrived on the scene right after the collision.
`
`The pursuit, collision, and aftermath were recorded on the police
`
`vehicle’s video camera.
`
`Officer Sarmiento identified defendant in court as the
`
`driver of the SUV.
`
`DISCUSSION
`
`I. Correction of preliminary hearing testimony
`
`A. Section 995a request
`
`Defendant contends that the court erred in allowing
`
`testimony to correct an omission in the evidence at the
`
`preliminary hearing, rather than remanding the matter to the
`
`magistrate for that purpose. He also contends that the alleged
`
`error affected the jurisdiction of the court to try him, and thus
`
`requires reversal of his conviction without regard to prejudice.
`
`Defendant was charged with a violation of Vehicle Code
`
`section 2800.3, which is defined as a violation of Vehicle Code
`
`section 2800.1, with serious bodily injury. (Veh. Code, § 2800.3,
`
`subd. (a).) A violation of Vehicle Code section 2800.1 occurs when
`
`a driver “willfully flees or otherwise attempts to elude a pursuing
`
`peace officer’s motor vehicle . . . if all of the following conditions
`
`exist: [¶] (1) The peace officer’s motor vehicle is exhibiting at
`
`least one lighted red lamp visible from the front and the person
`
`either sees or reasonably should have seen the lamp. [¶] (2) The
`
`peace officer’s motor vehicle is sounding a siren as may be
`
`reasonably necessary. [¶] (3) The peace officer’s motor vehicle is
`
`distinctively marked. [¶] (4) The peace officer’s motor vehicle is
`
`4
`
`

`

`operated by a peace officer . . . , and that peace officer is wearing
`
`a distinctive uniform.” (Veh. Code, § 2800.1, subd. (a).) Evidence
`
`of each of the enumerated elements was presented at the
`
`preliminary hearing, except that the pursuing officer was
`
`wearing a distinctive uniform.
`
`Two days before the case was called for jury trial,
`
`defendant filed a motion pursuant to section 995, to dismiss the
`
`information. In general, a section 995 motion is brought to set
`
`aside the information, on the ground that “the defendant had
`
`been committed without reasonable or probable cause.” (§ 995,
`
`subd. (a)(2)(B).) Defendant’s section 995 motion is not included
`
`in the appellate record; however, it was apparently based upon
`
`the assertion that defendant had been committed without
`
`reasonable or probable cause because no evidence was presented
`
`at the preliminary hearing that the pursuing officer was wearing
`
`a distinctive uniform.
`
`In response to defendant’s section 995 motion the
`
`prosecutor asked the trial court for leave to supplement the
`
`preliminary hearing testimony, pursuant to section 995a, which
`
`provides in relevant part: “(b)(1) Without setting aside the
`
`information, the court may, upon motion of the prosecuting
`
`attorney, order further proceedings to correct errors alleged by
`
`the defendant if the court finds that such errors are minor errors
`
`of omission, ambiguity, or technical defect which can be
`
`expeditiously cured or corrected without a rehearing of a
`
`substantial portion of the evidence. The court may remand the
`
`cause to the committing magistrate for further proceedings, or if
`
`the parties and the court agree, the court may itself sit as a
`
`magistrate and conduct further proceedings . . . . [¶] (2) Any
`
`further proceedings conducted pursuant to this subdivision may
`
`include the taking of testimony and shall be deemed to be a part
`
`of the preliminary examination.” (Italics added.)
`
`5
`
`

`

`The trial court allowed the prosecution to call Officer
`
`Abundis, who testified that he and Officer Sarmiento were in
`
`uniform that day, similar to the uniform he was wearing in court.
`
`The court noted for the record that the officer was wearing an
`
`“L.A.P.D. navy blue uniform with badge, neck tie, name tag,
`
`utility belt, the whole nine yards.” Defense counsel declined
`
`cross-examination. The trial court found that the uniform
`
`element had been satisfied, and denied the defense motion to
`
`dismiss.
`
`Defendant claims to have objected to having the trial court
`
`act as magistrate, and thus the parties did not all agree to the
`
`procedure, as required by section 995a, subdivision (b)(1).
`
`Although the record does not show that defense counsel expressly
`
`agreed to having the trial court hear the supplemental evidence,
`
`she did not specifically object to the procedure. She did object to
`
`allowing the prosecution the opportunity to present any
`
`supplementary evidence, and she asked that the court simply
`
`grant the section 995 motion to dismiss the information. As
`
`respondent observes, once the court denied that request and
`
`decided to hear the evidence, there was no specific objection to
`
`proceeding in the same court. Defense counsel merely said, “May
`
`I just lodge an untimely objection?” The court replied, “Noted.”
`
`Defense counsel’s failure to object to a procedure employed by the
`
`trial court may be deemed to be implied consent to the procedure.
`
`(Cf. People v. Francis (1969) 71 Cal.2d 66, 74-75 [amendment of
`
`information].)
`
`B. No jurisdictional error
`
`Assuming that defense counsel’s unspecific objection was
`
`sufficient or that section 995a requires an express agreement, we
`
`reject defendant’s contention that the alleged error was a
`
`jurisdictional one which requires reversal per se. Defendant has
`
`cited no authority directly relating to consent under section 995a.
`
`6
`
`

`

`Instead, defendant contends that a trial court loses jurisdiction to
`
`try a defendant whenever it fails to follow all procedural rules
`
`relating to the formation of the information.
`
`Defendant fails to make any distinction between errors
`
`which affect the fundamental jurisdiction of the court and errors
`
`which amount to an excess of jurisdiction. A lack of fundamental
`
`jurisdiction is “‘“an entire absence of power to hear or determine
`
`the case, an absence of authority over the subject matter or the
`
`parties.” [Citation.]’” (People v. Lara (2010) 48 Cal.4th 216, 224,
`
`quoting Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280,
`
`288.) A court may have fundamental jurisdiction but lack the
`
`power to act without the occurrence of certain procedural
`
`prerequisites; when it does so, it acts in excess of jurisdiction.
`
`(Lara, at pp. 224-225; Abelleira, at p. 288.)
`
`Thus, in general, the failure to follow a statutory
`
`procedural rule is merely an excess of jurisdiction. (People v.
`
`Silva (1981) 114 Cal.App.3d 538, 549.) “‘Most procedural steps,
`
`including those which are regarded as “mandatory,” are not
`
`jurisdictional. Errors or omissions in compliance with them are
`
`not fatal to the fundamental subject matter jurisdiction of the
`
`court [citation] nor to its jurisdiction to act.’ [Citation.]
`
`‘Frequently, the term, “jurisdictional” has been used to describe
`
`the mandatory nature of the rule. [Citations.] However, “[t]he
`
`term ‘jurisdiction’ is used in many senses. [Citation.] The term
`
`is not synonymous with ‘mandatory’ . . . .” [Citations.] The
`
`failure to comply with a mandatory procedural rule does not
`
`render a ruling void.’ [Citation.]” (People v. Valdez (1995) 33
`
`Cal.App.4th 1633, 1638-1639 (Valdez).)
`
`We agree with respondent that the alleged error did not
`
`deprive the trial court of jurisdiction. “Illegalities in pretrial
`
`commitment proceedings, other than those which are
`
`‘jurisdictional in the fundamental sense,’ are not reversible error
`
`7
`
`

`

`per se on an appeal from the subsequent trial. Rather,
`
`‘defendant [must] show that he was deprived of a fair trial or
`
`otherwise suffered prejudice as a result of the error at the
`
`preliminary examination.’ [Citation.]” (People v. Alcala (1984) 36
`
`Cal.3d 604, 628, quoting People v. Pompa-Ortiz (1980) 27 Cal.3d
`
`519, 529.) Thus, to become jurisdictional error in the
`
`fundamental sense, it must be shown to have infringed a
`
`fundamental right of defendant. (Valdez, supra, 33 Cal.App.4th
`
`at p. 1639.)
`
`The authorities on which defendant relies do not hold
`
`otherwise, as they involved, not merely a failure to adhere to
`
`statutory procedures, as defendant suggests, but a violation of
`
`the “constitutional mandate” that the information charge only
`
`those crimes shown by evidence presented in a preliminary
`
`hearing or before a grand jury. (Jones v. Superior Court (1971) 4
`
`Cal.3d 660, 664-666; see People v. Nogiri (1904) 142 Cal. 596, 598;
`
`People v. Burnett (1999) 71 Cal.App.4th 151, 177; People v.
`
`Winters (1990) 221 Cal.App.3d 997, 1004-1007; People v. Bomar
`
`(1925) 73 Cal.App. 372, 378; Cal. Const., art. I, § 14.) Here,
`
`defendant expressly acknowledges that the error did not violate
`
`his right to due process, and he makes no other constitutional
`
`claim.
`
`Defendant suggests that the court had no jurisdiction to
`
`proceed without his consent because it was the wrong court. He
`
`points out that even after the unification of the municipal and
`
`superior courts, “the basic procedural steps -- the filing of a
`
`complaint before a magistrate, the holding of a preliminary
`
`examination before a magistrate, and the filing of an information
`
`and arraignment on the information before a superior court judge
`
`-- remain the same.” (People v. Crayton (2002) 28 Cal.4th 346,
`
`359.) Since trial court unification, however, the magistrate and
`
`the trial judge are both judges of the superior court even though
`
`8
`
`

`

`they serve different functions. (See generally, People v.
`
`Richardson (2007) 156 Cal.App.4th 574, 586.) The superior court
`
`has jurisdiction in all felony proceedings. (See Cal. Const., art.
`
`VI, § 10.) “‘[T]he jurisdiction of a multijudge, multidepartment
`
`superior court is vested in the court as a whole and if one
`
`department exercises authority in a matter which might properly
`
`be heard in another such action, although ‘irregula [r],’ it does not
`
`amount to a defect of jurisdiction.’ [Citation.]” (People v.
`
`Madrigal (1995) 37 Cal.App.4th 791, 795.) Thus, if the trial court
`
`erred in this case by hearing the additional evidence without
`
`defendant’s consent, it did not deprive the court of its jurisdiction.
`
`C. No prejudice
`
`“No judgment shall be set aside . . . for any error as to any
`
`matter of pleading, or for any error as to any matter of procedure,
`
`unless, after an examination of the entire cause, including the
`
`evidence, the court shall be of the opinion that the error
`
`complained of has resulted in a miscarriage of justice. (Cal.
`
`Const., art. VI, § 13.) A miscarriage of justice due to state law
`
`error occurs when it appears that a result more favorable to the
`
`appealing party would have been reached in the absence of the
`
`alleged error. (People v. Watson (1956) 46 Cal.2d 818, 836.) It is
`
`the defendant’s burden to demonstrate the reasonable probability
`
`of a different result. (See People v. Hernandez (2011) 51 Cal.4th
`
`733, 746.)
`
`Respondent contends that defendant cannot show
`
`prejudice, because the trial court did not err and there was no
`
`reasonable probability that the magistrate would have ruled
`
`differently. We agree. The trial court did not err in finding that
`
`the uniform issue was a minor omission which could be
`
`“expeditiously cured or corrected without a rehearing of a
`
`substantial portion of the evidence.” (§ 995a, subd. (b)(1).) “[A]
`
`‘minor omission’ refers to one that is comparatively unimportant
`
`9
`
`

`

`. . . when considered in relation to the balance of the evidence
`
`required in order to hold the accused to answer.” (Caple v.
`
`Superior Court (1987) 195 Cal.App.3d 594, 602 (Caple).)
`
`Defendant suggests that no omission can be minor when it
`
`results in the elimination of an element of the crime. We agree
`
`that to hold defendant to answer, “there must be some showing as
`
`to the existence of each element of the charged crime [citation].”
`
`(Williams v. Superior Court (1969) 71 Cal.2d 1144, 1148.)
`
`However, the question before the trial court is not simply
`
`whether the information would fail without an omitted element.
`
`“[G]auging the magnitude of the defect by its effect on the
`
`prosecution’s case . . . would totally eviscerate section 995a,
`
`subdivision (b)(1), by permitting its use only when the omitted
`
`evidence was unnecessary in the first instance.” (Caple, supra,
`
`195 Cal.App.3d at pp. 601-602.) Rather, an omission may be
`
`deemed minor when it was “corrected by very brief testimony, did
`
`not involve a substantial rehearing of evidence, and, even
`
`assuming the omission prevented a finding of probable cause, did
`
`not go to the heart of the case.” (Id. at p. 604.)
`
`Defendant argues that the uniform element went to the
`
`heart of the case and required a substantial rehearing because
`
`the prosecution would be required to prove that he knew his
`
`pursuers were police officers. However, the basis for defendant’s
`
`knowledge was already shown at the preliminary hearing when
`
`Officer Sarmiento testified that he was with Officer Abundis,
`
`driving a marked police vehicle while he pursued the stolen car
`
`for over a mile with overhead lights and siren activated, as
`
`defendant sped past stop signs endangering pedestrians and
`
`oncoming cars, with a police helicopter overhead. The magistrate
`
`could reasonably infer from this evidence that defendant most
`
`certainly knew he was being pursued by the police. (See People v.
`
`Hudson (2006) 38 Cal.4th 1002, 1010-1011.)
`
`10
`
`

`

`Defendant’s comparison with Garcia v. Superior Court
`
`(2009) 177 Cal.App.4th 803, is misplaced. There, remand
`
`involved a substantial rehearing, as the omitted evidence went to
`
`the “core conduct, or actus reus, . . . of resisting arrest,” and the
`
`preliminary hearing transcript contained “no facts from which
`
`the magistrate could have inferred that (1) defendant was subject
`
`to a lawful detention, (2) the officer made an attempt to detain
`
`defendant, and (3) defendant ignored or evaded the officer’s
`
`attempt to lawfully detain him.” (Id. at p. 821.)
`
`Here, by contrast, the testimony was brief and correction of
`
`the omission essentially required a single question: Were the
`
`officers wearing distinctive uniforms? Officer Abundis testified
`
`that during the pursuit, he and Officer Sarmiento were in
`
`uniforms identical to what Officer Abundis was wearing in court.
`
`The trial court described the officer’s uniform for the record. No
`
`rehearing is required where “the omitted statement essentially
`
`required only one additional question and answer.” (Caple,
`
`supra, 195 Cal.App.3d at p. 603.) We conclude that the omission
`
`was minor.
`
`We agree with respondent that as the trial court correctly
`
`found the omission to be minor, there is no reasonable probability
`
`that the result would have been different had the magistrate
`
`heard the very brief testimony of Officer Abundis. Thus, if the
`
`trial court erred in failing to remand the matter to the
`
`magistrate, any such error was harmless.
`
`II. Pitchess review
`
`Prior to trial, defendant brought a Pitchess motion for the
`
`discovery of all material in the personnel files of Officers
`
`Sarmiento, Abundis, Krieg and Rothmich. The trial court
`
`granted the motion, conducted an in camera review on the
`
`limited issue of falsity or false police reports, and determined
`
`that there were no discoverable items in the records produced.
`
`11
`
`

`

`Defendant requests that we review the sealed transcript of the in
`
`camera review for possible error. We review the trial court’s
`
`determination for an abuse of discretion. (People v. Jackson
`
`(1996) 13 Cal.4th 1164, 1220-1221.)
`
`
`
`The records produced in the trial court were not retained,
`
`but during the in camera hearing the trial court examined and
`
`described each one, and stated reasons for its determination. We
`
`have the sealed transcript of that hearing before us, and find it
`
`alone sufficient to review the trial court’s determination. (See
`
`People v. Mooc (2001) 26 Cal.4th 1216, 1228-1229.) Upon review
`
`we conclude the trial court properly exercised its discretion in
`
`determining that the documents produced complied with the
`
`scope of the Pitchess motion, and that none of the documents or
`
`information should be disclosed to the defense.
`
`
`
`The judgment is affirmed.
`
`DISPOSITION
`
`NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
`
`
`
`
`
`
`
`We concur:
`
`__________________________, Acting P. J.
`ASHMANN-GERST
`
`__________________________, J.*
`GOODMAN
`
`
`____________________________________________________________
`* Retired Judge of the Los Angeles Superior Court, assigned by
`the Chief Justice pursuant to article VI, section 6 of the
`California Constitution.
`
`
`
`
`
`
`
`
`
`
`
`
`
`__________________________, J.
`CHAVEZ
`
`12
`
`

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