People v. Abelino ( 2021 )

Filed 4/19/21 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Appellant,
A159088
v.
EDGAR ABELINO et al., (Del Norte County
Super. Ct. No. CRPB195062)
Defendants and Respondents.
THE COURT:
It is ordered that the opinion filed herein on March 29, 2021, be
modified as follows:
1. On page 18, in the second paragraph, the sentence beginning, “To the
contrary, at least with respect to defendants Tagaban, . . . ” is changed
to:
To the contrary, at least with respect to defendants Tagaban, who
had a gunshot wound, and Abelino, who had blood on his
clothing, the magistrate commented that a more logical reading
of the evidence was that they were “involved” in the assault on
the officers or “in something.”
2. On page 22, the sentence beginning, “Then, about 20 seconds
later, . . .” and the following sentence beginning, “An officer appeared
in the inmate's path and extended his arm, . . .” are changed to:
Then, about 20 seconds later, he got up and quickly moved
toward the vehicle gate. An officer appeared in the inmate’s path
and extended his arm, the inmate stopped his forward progress,
and, after a couple of seconds, the inmate got back down.”
1
3. On page 23, the following paragraph and accompanying footnote are
inserted between the two existing paragraphs:
In his petition for rehearing, Hernandez argues for the first time
that even if he was the inmate in blue identified in the channel 5
video, the riot was over when he interacted with Contreras. We
have reviewed the video evidence and believe it sufficient for a
reasonable person to conclude that the riot had not fully ended
when the conduct at issue occurred.
4. On page 23, after the first sentence of the paragraph added by
modification No. 3 of this order, add as footnote 15 the following
footnote, which will require renumbering of the subsequent footnote:
15 Hernandez claims he made this argument in his
supplemental brief, but we do not read that brief as having
clearly set forth this argument.
5. On page 23, the last sentence in footnote 14 beginning, “The People
argued below and on appeal that Hernandez participated in a riot
or . . . . ” is replaced with:
The People introduced video evidence and testimony from Officer
Contreras at the preliminary hearing and argued below and on
appeal that Hernandez participated in the riot and was
responsible for the natural and probable consequences thereof.
In their motion to reinstate below, the People specifically argued
that Hernandez lunged at an officer and took a bladed stance
towards him, and, in their appellate briefing, the People again
argued that Hernandez was seen threatening an officer after
being told to get down.
There is no change in judgment.
The petitions for rehearing are denied.
Date: _____________________ ________________________________ P. J.
2
Filed 3/29/21 (unmodified opinion)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Appellant,
A159088
v.
EDGAR ABELINO et al., (Del Norte County
Super. Ct. No. CRPB195062)
Defendants and Respondents.
A riot occurred at Pelican Bay State Prison in which several
correctional officers were seriously injured. The People charged
defendants with torture (Penal Code1, § 206), mayhem (§ 203), assault
by a state prisoner (§ 4501, subdivision (b)), and battery by a state
prisoner on a nonprisoner (§ 4501.5). At the preliminary hearing, the
magistrate dismissed the complaint, and the trial court denied the
People’s motion to reinstate the complaint under section 871.5. The
People appeal, seeking to reinstate the complaint with all but the
torture counts. We reverse the superior court’s order denying the
People’s motion to reinstate counts 5 through 17 of the complaint
against defendants.2
All further statutory references are to the Penal Code unless
1
otherwise stated.
2 Because the People do not seek to reinstate the torture charges,
we do not address any arguments relating to counts 1 through 4.
1
I. FACTUAL AND PROCEDURAL BACKGROUND
A. The Charges
The Del Norte County District Attorney filed a felony complaint
charging defendants Edgar Abelino, Issajan Osman, Francisco
Hernandez, and David Tagaban with torture (§ 206, counts 1–4); four
counts of mayhem, naming officers Daniel Mount, Sergio Chavez, Paul
Hicks, and Dale McDonald as victims (§ 203, counts 5–8); eight counts
of assault by a state prisoner by means of force likely to produce great
bodily injury naming officers Hicks, Mount, McDonald, Chavez, Anival
Avila, John Franz, Zackery McCully, and Travis Molina as victims
(§ 4501, subd. (b), counts 9–16); and battery by a state prisoner on
nonprisoner, John Franz (§ 4501.5, count 17). The complaint alleged
that all defendants had suffered prior serious felony and strike
convictions pursuant to section 667, subdivisions (a), and (b) through
(i).
B. Testimony from the Preliminary Hearing
Two inmates at Pelican Bay State Prison, a prison with the
highest level 4 security classification, got into a fight in prison yard 3,
which is in front of 5 block. Some of the correctional officers responding
to the fight used batons and O.C. grenades to try to break up the fight,
and another officer working at an observation post, Officer Brewer,
shot a 40-millimeter round at one of the combatants and hit his leg.
When the fight was happening, the other inmates in the yards were
ordered to a prone position.
After the fight between the two inmates ended, many inmates got
to their feet and rushed the officers. Inmates attacked officers near the
vehicle gate between yards 2 and 3 and prevented officers from closing
2
the gate. Officer Featherstone, who was outside walking toward yard 5
when the initial inmate fight broke out and who responded to the
subsequent riot, testified that he saw 40 to 50 inmates get on their feet
from yards 1 and 2 and run to yard 3. He further testified that the
“Southerners”3 in front of 5 block also got up and rushed officers, some
of whom were attempting to close the vehicle gate. Featherstone
testified that he knew the inmates who got up from 5 block were
Southerners because inmates with certain gang affiliations hang out in
specific areas, and the area where the movement came from was the
Southerners’ area. During the riot, Featherstone observed inmates
attack officers and heard an inmate aggressively yelling, “Get him. Kill
them.” Featherstone testified that some inmates in the yard never got
up. Video of the incident taken by four cameras on the prison yards
and at the observation post showed that some inmates remained
prone.4
Numerous officers were injured by unidentified inmates,
including officers Franz, Hicks, Molina, Chavez, Avila, McDonald,
McCully, and Sergeant Mount.5 The officers were attacked by multiple
3Officers described “Southerners” to be a group of prisoners, most
but not all Southern Hispanic, associated with the validated gang of the
Mexican Mafia.
4 The video came from what the officers referred to as channels 3,
5, 6, and 9. The channel 3 camera was pointed at yard 2, the channel 5
camera was pointed at most of yards 3 and 4, the channel 6 camera was
pointed at a part of yard 3 near the urinals, and the channel 9 camera
was at the observation post and captured the initial fight and the
subsequent riot.
5 The injured officers did not testify at the preliminary hearing.
Instead, testimony came from investigating officers who interviewed
the victims and officers who responded to the incident.
3
inmates who used their fists and feet, and there were upwards of 10
inmates to each officer. From his observation post, Officer Brewer saw
numerous inmates attacking an officer; he shot a 40-millimeter round
at one inmate, hitting him in the chest, and he then shot another 40-
millimeter round and struck another inmate who fled the area after
being shot. Officer Hicks was surrounded by inmates who pushed him
to the ground and repeatedly punched and kicked him, and he thought
he was going to die. He lost consciousness and was dragged to the
safety of a small concrete yard by other officers. Officer Chavez was
struck in the face by an inmate and suffered a broken nose. He was
punched and kicked after he fell to the ground. Officer Franz was
struck in the face as well. Sergeant Mount was swarmed by inmates
and pinned against a fence. He hung on to the fence and was
repeatedly punched all over his body; he believed he would have been
killed if he had fallen to the ground. Officer McDonald was struck on
the side of his head when he attempted to help Sergeant Mount, and he
floated in and out of consciousness thereafter. Multiple inmates
attacked Officer McCully, who was also struck in the head and suffered
an injury to his head that required stitches. Officer Avila was hit from
behind while trying to close a vehicle gate. Officer Molina was attacked
by several inmates and believed that his life was in danger. Some
4
officers suffered permanent injuries, and several did not anticipate
returning to work because of their injuries.6
Special Agent Geivett and Officer Bolden investigated the use of
deadly force by officers during the riot. Officers shot a total of 20 shots
from mini-14 rifles during the incident. Five of the 20 were “for effect,”
meaning the officer firing the shot intended to hit an inmate, and the
remaining 15 were warning shots. Officer Vick, who was working in
the building 6 observation post at the time of the riot, discharged four
of the five “for effect” shots.7 Each time, he aimed for the center mass,
or the large portion of the upper body, of an inmate who was attacking
officers, and he believed his shots impacted. Officer Hendrix, who was
working in the observation post for the facility B yard, discharged the
fifth “for effect” shot. He observed inmates attacking an officer in yard
3 who was hanging onto the fence, and Hendrix believed that if the
officer went down, he would be killed. Hendrix fired one shot at the
6 The alleged victims of the mayhem charges were officers Mount,
Chavez, Hicks, and McDonald. Mount suffered a torn tendon and
severe damage to his left arm, rendering it virtually useless. Chavez
suffered concussions and pain and numbness in his right arm and hand
that affects his grip strength and ability to do simple chores and hold a
gun. Hicks had herniated disks in his neck; he suffered a puncture
wound on his right elbow that caused a laceration to one of the nerves
or tendons, leaving him with little use of his right arm. McDonald tore
his meniscus and will require a knee replacement; he tore his rotator
cuff and cannot fully raise his right arm; he also had metal plates put
in his face to remedy shattered face bones. Defendants do not contend
there was insufficient evidence that mayhem occurred, but they
contend the identities of the perpetrators of the mayhem are unknown.
7 Officer Vick remembered firing three shots, but the
investigation uncovered another casing and determined that Vick fired
a total of four shots.
5
group of ten or more inmates attacking that officer, and he believed he
hit an inmate in the upper body. After that, Hendrix discharged only
warning shots for fear of hitting the officers being attacked. Of the
warning shots, Officer Hendrix fired 13 and Officer Gonzalez, who was
working in the observation post for facility 3, fired two.8 Hendrix fired
his warning shots into the ground in front of his post, as did Gonzalez.
Investigative officers inspected the ground where these warning shots
impacted and observed 13 holes where Hendrix fired and two where
Gonzalez fired. All of the “for effect” shots were discharged in yard 3,
and Geivett testified that there were five inmates with bullet wounds.
Officers who responded to the incident testified that, after the incident
was over, inmates on both yards 2 and 3 were found with gunshot
wounds.
During the riot, video captured an inmate in yard 3 in a blue
shirt getting into the prone position with his body facing away from the
vehicle gate between yards 2 and 3.9 The inmate turns himself around
to face the vehicle gate and moves as if to get up but resumes the prone
position. Then, the inmate gets up and starts running in the direction
Agent Geivett confirmed that Officers Hendrix, Vick, and
8
Gonzalez were all gunners.
9 Prior to getting into the prone position, this inmate is seen
coming into the channel 5 video recording behind an inmate in white
who appears to knock over an officer. The parties describe the inmate
in blue as being involved in a fight with another inmate, presumably
the one in white, when he appears on the video recording; it is not clear
from the video, however, that the inmates were involved in a fight. In
any event, the nature of the interaction between these two inmates is
irrelevant to our disposition, as the relevant action takes place
approximately 30 seconds later when the inmate in the blue shirt gets
up from his prone position, after the inmate in white is no longer visible
on the recording.
6
of the vehicle gate. An officer appears in the inmate’s path and extends
his arm, and, after a couple of seconds, the inmate gets down and later
appears to be handcuffed in the spot where he got down. Officer
Contreras, who identified video of the interaction and identified himself
as the officer who appeared in the inmate’s path, testified that he later
identified the inmate as Hernandez by his position on yard 3 through
photographs that were taken of the inmates’ positions on the yard, and
that he obtained Hernandez’s inmate number after reviewing the
photographs from yard 3.10 Contreras testified that Hernandez got up
from the ground to lunge toward him, and he did not get down until
Contreras took out his baton and ordered him down twice. Hernandez
was about 15 to 20 feet from the location of the original incident when
he encountered Contreras.
Once the riot was under control, the vehicle gate was locked, the
inmates were handcuffed, and placement photographs were taken.
Inmates were then photographed in the yard where they were found
with their prison identification card or placards with handwritten
names if they did not have their card. Only inmates found in yard 3
were photographed in yard 3. Defendants Abelino, Osman, and
Hernandez were photographed in yard 3. The magistrate reviewed the
admitted inmate photographs and identified Abelino, Osman, and
Hernandez as the individuals in the photographs. Abelino’s shorts and
10There were two other inmates with the surname Hernandez
located on the yards after the riot and identified in the report that
Contreras composed on the day of the incident. However, the other
two, whom Contreras identified in his report by differing “last two”
numbers (seemingly their prison identification numbers), were on yard
2.
7
socks had blood spatter on them, but the blood was not sent out for
testing. Osman’s left forearm had a red mark that Officer Burr, one of
the officers who investigated the incident, opined was consistent with
being hit by a 40-millimeter launcher, or an exact impact round.
Defendant Tagaban was located on yard 3, and officers escorted to him
the clinic because he had a gunshot wound in his bicep. He was
identified by a testifying officer who had worked in the unit where
Tagaban was housed and who had helped escort Tagaban off yard 3.
Tagaban was transported to the hospital, and photographs of him from
the hospital show his knees scuffed and bloody.
There were only two possible weapons found among the
inmates—a rolled-up soda can and a piece of plastic. Officer Zach
Basnett, who worked for the investigative services unit, spoke to two
confidential informants and received reports from three others about
the incident. From these informants, Basnett learned that the incident
involved Southern Hispanic gang members who responded to the
perception that officers were using excessive force against the two
initial combatants. Basnett’s source told him the incident was
unplanned, and, based on his investigation, Basnett testified that his
source’s statement seemed accurate.
C. Dismissal of the Charges
After testimony, the People argued that defendants participated
in a prison riot and the natural and probable consequences of such a
riot were torture, mayhem, battery, and assault. Counsel for various
defendants argued that the evidence showed only that defendants were
in the yard, not that they committed any crime.
8
Tagaban’s counsel argued specifically that there was no evidence
of torture, and the evidence showed that the inmates acted to stop the
use of excessive force. He conceded there was evidence of mayhem, but
he stated there was no evidence before the court of what defendants
actually did or that defendants touched the officers. He argued that
not every inmate found in the yards participated in the riot, specifically
mentioning video showing four or five men who remained prone.
Tagaban’s counsel then rhetorically asked whether those men were his
client or the other defendants. The magistrate responded, “Well, you
know, the—you argue the gunshot thing could have been accident. I
would think much more logically he was—got—was involved in
something and got shot. I think that’s a much more logical reading of
that injury. And the blood on the other people. They were in the—they
were not lying on the ground. They were involved in something. But—
so . . . [¶] But your other arguments are, I think, better.”
The magistrate went on to reject the defense of others argument,
finding that “they are way beyond defense of others . . . because the
[initial] fight was over with. Those guys were done. It was over with.
Once they got up, they had—there’s no way that they can claim defense
of others.” Tagaban’s counsel interjected and stated that the men who
beat the officers should be punished, but questioned, “Who are they?”
The magistrate responded, “I’m getting to that. [¶] And so I can’t tell
who—I can’t tell who was actually involved in the assault except,
unfortunately as to your client, I think I can very reasonably infer. But
the question is the crimes—I think your argument on torture is good. I
have a hard time finding the occurrence of torture in there. [¶] They did
cause mayhem though. These guys were—as Officer Pena was
9
describing, they are serious injuries, real serious injuries. Many of
them are no longer going to be able to be in law enforcement. [¶]
Anyway, this is a tough one. Yeah. [¶] . . . [¶] I want to hear another
round because I’m—and if I’m to that point where I’m having that
much trouble, I’m not really comfortable saying, yeah.”
Hernandez’s counsel then conceded that Hernandez was guilty of
misdemeanor delaying an officer. Tagaban’s attorney addressed the
magistrate’s earlier referenced inference and argued that the officers
who fired shots were likely to have fired and “drop[ped]” inmates who
were not near the victim officers. The magistrate responded, “Well, or
let’s not drop anybody. They shot 20 shots, 15 of them into the ground.”
He then concluded, “Yeah. I’m not comfortable binding the case over.
I’m finding that there isn’t sufficient cause to believe—[¶] . . . [¶] I don’t
believe there’s sufficient cause to believe that the crime of torture—that
the crime of torture—there may be some evidence of the crime of
mayhem. But I don’t think that these defendants are tied in. [¶] And so
I’m going to determine that the Counts 1 through 8 as to all the
defendants are dismissed, and the defendants are discharged.” Defense
counsel asked the court about counts 9 through 17, and the prosecutor
confirmed that for these counts, “it’s the same theory. Everything is
the same theory. Participate in a riot, you’re guilty for what happens.
I’m just looking for an order.” The magistrate concluded, “I’m going to
have the same order. I’m not going to find that either.”
D. The Reinstatement Motion
The People moved to reinstate the complaint under section 871.5.
The court affirmed the magistrate’s dismissal, finding the record was
devoid of evidence that the defendants did any specific thing. “Viewed
10
as a whole, the prosecution is relying on a tumultuous, riotous situation
coupled with proof of correctional officer injuries to have us draw the
inference that these four defendants actually committed certain specific
crimes.” The court found that the magistrate made an “affirmative
finding of fact that there’s nothing sufficiently persuasive that he
believes to tie the defendants in with the commission of any of the
charged crimes.” The People appealed.
II. DISCUSSION
The prosecution seeks to hold defendants liable for the
commission of mayhem, assault by a state prisoner, and battery by a
state prisoner on a nonprisoner (the nontarget offenses) based on the
theory that defendants participated in, or aided and abetted, a riot at
Pelican Bay (the target offense), and defendants are liable for the
nontarget offenses because the nontarget offenses are natural and
probable consequences of commission of the target offense. We thus
embark upon two distinct inquiries in this appeal: first, was there
sufficient cause to believe that defendants participated in, or aided and
abetted, a prison riot; and second, would a reasonable person in
defendants’ positions know that the commission of mayhem, assault by
a state prisoner by means of force likely to produce great bodily injury,
and battery by a state prisoner on a nonprisoner were the natural and
probable consequences of the riot.
A. Standard of Review
A magistrate’s function at a felony preliminary hearing is to
determine whether there is “sufficient cause” to believe defendant
guilty of the charged offense. (§§ 871, 872, subd. (a).) “Sufficient cause”
means “ ‘reasonable and probable cause’ ” or “a state of facts as would
11
lead a [person] 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; People v. Slaughter
(1984) 35 Cal.3d 629, 636 (Slaughter).) It is “a level of proof below that
of proof beyond a reasonable doubt, or even proof by a preponderance of
the evidence.” (People v. Hurtado (2002) 28 Cal.4th 1179, 1189.) In
determining whether there is probable cause, the magistrate may
“weigh the evidence, resolve conflicts, and give or withhold credence to
particular witnesses.” (Uhlemann, at p. 667.) “A charge will not be
dismissed for lack of probable cause ‘if there is some rational ground for
assuming the possibility that an offense has been committed and the
accused is guilty of it.’ ” (People v. Superior Court (Day) (1985)
174 Cal.App.3d 1008, 1020 (Day).) It is well settled that “the showing
required at a preliminary hearing is exceedingly low.” (Salazar v.
Superior Court (2000) 83 Cal.App.4th 840, 846.)
“When an action is dismissed by a magistrate pursuant to Section
859b, 861, 871, 1008, 1381, 1381.5, 1385, 1387, or 1389 of this
code, . . . or a portion thereof is dismissed pursuant to those same
sections which may not be charged by information under Section 739,
the prosecutor may make a motion . . . to compel the magistrate to
reinstate the complaint or a portion thereof and to reinstate the
custodial status of the defendant under the same terms and conditions
as when the defendant last appeared before the magistrate.” (§ 871.5,
subd. (a).) However, the prosecution may only seek reinstatement on
the basis that “as a matter of law, the magistrate erroneously
dismissed the action or a portion thereof.” (§ 871.5, subd. (b).)
12
On appeal following a superior court’s order denying a motion to
reinstate a complaint under section 871.5, we disregard the superior
court’s ruling and examine only the magistrate’s ruling. (People v.
Massey (2000) 79 Cal.App.4th 204, 210.) Our Supreme Court in
Slaughter set forth the standard of review of the magistrate’s ruling.
(Slaughter, supra, 35 Cal.3d at p. 642.) The character of our review
depends on whether the magistrate has exercised the power to render
findings of fact. (Id. at p. 638.) If the magistrate makes factual
findings, those findings are conclusive if supported by substantial
evidence. (Ibid.) “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.” (Ibid.) “[I]f 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.” (Id. at pp. 639–
640, italics omitted.)
Preliminarily, the parties dispute whether the magistrate made a
factual finding or rendered a legal conclusion. The following statement
is the subject of debate: “I don’t believe there’s sufficient cause to
believe that the crime of torture—that the crime of torture—there may
be some evidence of the crime of mayhem. But I don’t think that these
defendants are tied in.” The People contend that the magistrate
erroneously concluded that defendants could not be legally liable for
the nontarget offenses absent evidence that specifically proved each of
them attacked one of the victims, or that he rendered a strictly legal
13
conclusion that the evidence was insufficient to show that defendants
participated in the riot. Defendants Abelino, Osman, and Hernandez
contend that, in stating, “I don’t think these defendants are tied in,” the
magistrate made a controlling finding of fact that defendants did not
participate in the riot. Because the dispute over whether the
magistrate made a factual finding affects our standard of review, we
address it first.
Jones v. Superior Court (1971) 4 Cal.3d 660 (Jones), provides the
seminal example of a case where express factual findings precluded
further prosecution of a charge dismissed at the preliminary hearing. 11
There, the defendants had been charged with rape, oral copulation, and
sodomy. (Id. at p. 663.) The victim and the defendants testified to two
different versions of events at the preliminary hearing. (Ibid.) The
magistrate stated his opinion that the victim had not told the truth.
(Id. at pp. 663–664.) He found that neither the sodomy nor the oral
copulation had taken place, the victim had consented to sexual
intercourse with defendants, and he held the defendants to answer for
statutory rape. (Ibid.) The district attorney filed an information
charging the original offenses, and the testimony of the victim, if
believed, would have supported a conviction for all the offenses. (Id. at
11 Jones reviewed an order denying the defendant’s motion under
section 995 to dismiss an information following the prosecution’s
election under section 739 to refile the information including charges
dismissed at the preliminary hearing where the defendant had been
held to answer on a transactionally related charge (section 739 review).
(Jones, supra, 4 Cal.3d at p. 664.) Slaughter adopted the standard for
section 739 review for cases under section 871.5 and relied on section
739 authorities explaining when a magistrate has made a finding of
fact. (Slaughter, supra, 35 Cal.3d at p. 642.)
14
pp. 664–666.) However, the Supreme Court held that the magistrate’s
factual findings disbelieving the victim prohibited the refiling of the
rape, oral copulation, and sodomy charges. (Id. at p. 666.)
After Jones, courts have observed that determining whether the
magistrate made a prohibitive factual finding is not always clear-cut,
and Jones did not provide “guidelines for the interpretation of
magisterial remarks.” (Day, supra, 174 Cal.App.3d at p. 1016.) “Jones’
distinction between a factual finding and a legal conclusion is clear
enough in the abstract but has posed some difficulty in its practical
implementation. Experience has demonstrated that it is not always
easy to apply a strip of appellate litmus to a magistrate’s record
remarks and distinguish between evidentiary evaluation and factual
determination.” (Id. at pp. 1015–1016.) Often, “the magistrate’s
remarks leave considerable room for interpretation, as is often true of
the impromptu statements of lawyers and judges.” (Dudley v. Superior
Court (1974) 36 Cal.App.3d 977, 981 (Dudley).) In this case, where the
magistrate neither expressed disbelief of an essential witness, nor
recited specific findings of fact with talismanic reference to Jones, we
find a series of appellate decisions instructive.
In Dudley, the evidence showed that the defendant had beaten
the victim who died of a brain hemorrhage. However, the death
occurred only because of a preexisting aneurysm of which the
defendant was unaware. (Dudley, supra, 36 Cal.App.3d at p. 979.) The
complaint charged murder, and after the preliminary hearing, the
magistrate held the defendant to answer for involuntary manslaughter,
saying, “I did not think this was murder[,] . . . I think it requires a
great deal more proximate cause and the actual cause of death when
15
you are dealing with a pre-existing condition[,]” and “[t]here is no
evidence [of] . . . either expressed or implied malice.”12 (Id. at pp. 978–
979, 980.) The superior court denied the defendant’s section 995
motion after the prosecutor refiled an information charging murder.
(Id. at p. 979.)
The appellate court denied the defendant’s request for a writ
requiring that the information be amended to charge manslaughter
instead of murder. (Dudley, supra, 36 Cal.App.3d at p. 985.) The court
observed that it was not clear whether the magistrate made a factual
finding: portions of his statements suggested that he believed a
stronger showing of causation was required for murder than for
manslaughter, or that the offense would not be murder where the
12 The magistrate’s full statement was: “ ‘[The defendant] in this
case must foresee that the individual he picks is suffering from a pre-
existing condition, and if he gets in a fight with him, he might die. [¶]
‘That is why I said in the beginning, and what I meant to say, in trying
to guide Counsel during the course of the evidence that I did not think
this was murder. I said that it was homicide. I meant murder because
the murder case requires showing malice. I think it requires a great
deal more proximate cause and the actual cause of death when you are
dealing with a pre-existing condition. [¶] . . . [¶] ‘There is no question
that the evidence does not (sic) disclose combative situation, such as
was described in this case by the witnesses, and by the autopsy
surgeon’s findings, which did not disclose any evidence of abandoned
malignant heart. [¶] ‘There has to be expressed malice or implied
malice for it to be murder. There is no evidence there from which the
Court can conclude, either expressed or implied malice existed in this
case. [¶] . . . [¶] ‘I think the man should be charged with involuntary
manslaughter. I think it is a one-sided fight. I think he took
advantage when [the victim] was down, but I do not believe that those
circumstances in the light of the autopsy surgeon’s findings that they
were moderate external injuries and do not show abandon and
malignant heart.’ ” (Dudley, supra, 36 Cal.App.3d at pp. 979–980.)
16
assailant was unaware of the victim’s pre-existing condition, whereas
other portions might be read to express the view that the evidence was
insufficient to support a finding of malice. (Id. at p. 981.) The court
started the task of interpreting the magistrate’s statements with the
observation that, on the record before it, malice could be arrived at only
by drawing inferences from mostly undisputed facts. (Id. at p. 982.) No
showing was made that the magistrate disbelieved the testimony
presented by the prosecution. (Id. at p. 985.) Ultimately, the court
concluded that the magistrate did not make a factual finding. (Ibid.)
Instead, what the magistrate did is draw “inferences from the proven
facts, which indicated to his mind that there was no malice, even
though these same evidentiary facts would have supported a finding of
malice in the mind of another reasonable person.” (Id. at p. 982.) The
court reversed the magistrate’s legal error because “[t]he unimpeached,
credible evidence received at the preliminary examination supports an
inference of malice and gives probable cause to try petitioner for
murder, but the magistrate acted upon his personal opinion that the
offense was no more than manslaughter.” (Id. at p. 985.)
In People v. Superior Court (Gibson) (1980) 101 Cal.App.3d 551,
553–554, the trial court granted the defendant’s motion under section
995, finding that the magistrate’s factual findings precluded
prosecution of a kidnapping charge and “special circumstance”
allegations for first degree murder. The appellate court characterized
the magistrate’s ruling as “a mixture of suggestions about [the
magistrate’s] factual findings and statements about his conclusions
concerning reasonable cause,” including comments on the believability
of two unnamed witnesses. (Ibid.) The appellate court found that the
17
trial court had “attempted to guess which witnesses the magistrate
found doubtful, and having made its guess felt bound by the
magistrate’s findings.” (Id. at p. 554.) “[W]here guesswork is required
to determine what the magistrate found, there is no finding worthy of
the deference required by the Jones decision.” (Ibid.) Thus, the court
instructed the trial court to reconsider the motion without regard to the
purported “findings” of the magistrate. (Id. at p. 555; accord Day,
supra, 174 Cal.App.3d at pp. 1018–1019 [rejecting the trial court’s
conclusion that the magistrate made an implied factual finding that the
defendant killed without malice where that conclusion was a result of
guesswork and the magistrate made no express factual finding].)
We conclude that the magistrate here did not make a factual
finding. He did not specify that he was making a factual finding that
defendants remained on the ground during the riot or that they did not
participate therein. To the contrary, at least with respect to defendants
Tagaban, who had a gunshot wound, and Osman, who had blood on his
clothing, the magistrate commented that a more logical reading of the
evidence was that they were “involved” in the assault on the officers or
“in something.” Not long after those comments and directly after
stating that he “did not believe there was sufficient cause to believe
that the crime of torture” was committed, the magistrate said that,
while there was some evidence of mayhem, he “[didn’t] think that these
defendants are tied in.” There is some ambiguity to the magistrate’s
statement, but a “factual finding fatal to a criminal allegation, which
prevents the prosecution from even filing the charge, should not be
established by guesswork.” (Day, supra, 174 Cal.App.3d at p. 1019.)
There is no showing that the magistrate disbelieved or disregarded any
18
of the People’s evidence, and the evidence was largely undisputed. On
this record, then, we believe the magistrate accepted the proffered
evidence, but determined there was insufficient evidentiary support for
a finding that defendants committed mayhem. This was a legal
conclusion.
Indeed, as defendants concede that the magistrate’s ruling
“might have been more detailed,” they impliedly concede its ambiguity.
Citing People v. Massey, supra, 79 Cal.App.4th at page 210, defendants
nonetheless state that, to the extent that the ruling leaves room for
argument, “[this court], like the superior court, must draw every
legitimate inference in favor of the magistrate’s ruling and cannot
substitute our judgment, on the credibility or weight of the evidence,
for that of the magistrate.” The rule that defendants cite represents
the standard if the magistrate made factual findings. (Massey, at
p. 210 [“To the extent the magistrate’s decision rests upon factual
findings, ‘[w]e . . . must draw every legitimate inference in favor of the
magistrate’s ruling and cannot substitute our judgment, on the
credibility or weight of the evidence, for that of the magistrate’ ”].)
That standard does not govern our assessment of whether the
magistrate actually made factual findings. In this case, we review the
magistrate’s legal determination de novo. (Slaughter, supra, 35 Cal.3d
at p. 638.)
B. Sufficient Cause Exists to Believe Defendants Participated in
a Riot
Participation in a riot is a criminal offense. (§ 405.) “Any use of
force or violence, disturbing the public peace, or any threat to use force
or violence, if accompanied by immediate power of execution, by two or
19
more persons acting together, and without authority of law, is a riot.”
(§ 404, subd. (a).) “[D]isturbing the public peace may occur in any place
of confinement,” including a state prison. (§ 404, subd. (b).) “It [is] not
necessary that a previous agreement between the aggressors should
have been alleged, or have existed, to bring such offenses within the
inhibitions of section 404.” (People v. Bundte (1948) 87 Cal.App.2d 735,
743 (Bundte).) “[I]t is the concurrence of unlawful action by individuals
in the use, or threat to unlawfully use force or violence that constitutes
the offense of riot.” (People v. Cipriani (1971) 18 Cal.App.3d 299, 304,
italics omitted.) The law prohibiting riots is based on the need to
prevent the combined effect of concurring violent acts, not conspiracy.
(Id. at pp. 306–307 [affirming a riot conviction where the concurrence of
the defendant’s act of throwing rocks at national guardsmen with the
actions of other persons who were participating in a generalized riot in
a specific location, as well as defendant’s knowledge of that
concurrence, was clearly inferable from the circumstances].) All
persons who encourage, incite, promote, give support to or countenance
a riot are principals in a riot. (Bundte, at p. 746.)
“A person aids and abets the commission of a crime when he or
she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii)
and with the intent or purpose of committing, facilitating or
encouraging commission of the crime, (iii) by act or advice, aids,
promotes, encourages or instigates the commission of the crime.”
(People v. Cooper (1991) 53 Cal.3d 1158, 1164.) Neither mere presence
at the scene of a crime, nor the failure to take steps to prevent a crime,
is alone enough to establish that a person is an aider and abettor. Such
evidence may, however, be considered together with other evidence in
20
determining that a person is an aider and abettor. (Pinell v. Superior
Court (1965) 232 Cal.App.2d 284, 287.)
We thus inquire whether there is “ ‘some rational ground for
assuming the possibility that [the offense of rioting] has been
committed and the accused is guilty of it.’ ” (Day, supra,
174 Cal.App.3d at p. 1020.) Given the testimony and video evidence,
there is clearly is a rational ground for assuming the possibility that a
riot occurred at Pelican Bay. We turn then to whether there is some
rational ground for assuming defendants are guilty of participating in
the riot.
The evidence gives rise to a strong suspicion that defendant
Tagaban participated in the “use of force or violence, disturbing the
public peace, or [a] threat to use force or violence, . . . accompanied by
immediate power of execution,” along with other inmates and without
authority of law. (§ 404.) After the riot ended, Tagaban was escorted
from yard 3 to the clinic with a bullet wound in his bicep. Officers fired
only five “for effect” shots during the riot, and they fired these shots in
yard 3. The two officers who fired the “for effect” shots aimed at
inmates attacking officers, and each believed his shots impacted. After
the riot was over, five inmates had bullet wounds. Investigative
officers verified that the 15 warning shots fired during the riot were
fired into the ground in front of observation posts. Further,
photographs of Tagaban from the hospital where he was taken for
treatment after the riot showed that his knees were bloody and
scraped. Tagaban argues that, if he acted, he did so in defense of
others, but we reject his argument because the magistrate’s finding
21
that the initial inmate fight was over when the inmates rose to riot is
supported by substantial evidence.13
Regarding Hernandez, Officer Contreras testified that an inmate
got up from a prone position to lunge toward him. The inmate did not
get back down until Contreras took out his baton and ordered him
down twice. Contreras identified video from the yard capturing his
interaction with the inmate. That same video shows that, before his
interaction with Contreras, the inmate came into the video recording on
foot from the right and subsequently got into the prone position with
his body facing away from the vehicle gate between yards 2 and 3. He
turned himself around to face the vehicle gate and moved as if to get
up. Then, about 20 seconds later, he got up and started running
toward the vehicle gate. An officer appeared in the inmate’s path and
extended his arm, stopping the inmate’s movement, and, after a couple
of seconds, the inmate got back down, and later appeared to be
handcuffed in the spot where he got down. Contreras confirmed that
he was the officer in the inmate’s path on the video, and he later
identified the inmate as Hernandez by his position on yard 3 through
photographs that were taken of the inmates’ positions and Hernandez’s
prison identification number, which he obtained after reviewing the
photographs. Hernandez was 15 to 20 feet from the location of the
original incident. This evidence supports a reasonable suspicion that
13Among other things, the doctrine of “defense of another”
requires the defendant to have reasonably believed that a third party
was in imminent danger of suffering bodily injury or of being touched
unlawfully and to have reasonably believed that the immediate use of
force was necessary to defend against that danger. (CALCRIM
No. 3470.)
22
Hernandez acted with the threat to use force or violence, accompanied
by immediate power of execution, while knowing other inmates were
unlawfully rioting and attacking guards. It similarly supports a
reasonable suspicion that Hernandez knew the other inmates were
rioting and attacking officers, intended to commit, encourage, or
facilitate the crime of rioting, and, by the act of threateningly moving
toward Contreras, aided the commission of the riot.14
Finally, we also find the evidence establishes a state of facts that
would lead a person of ordinary caution to entertain a “strong
suspicion” that defendants Abelino and Osman participated in, or aided
and abetted, the riot. The inmates were photographed along with their
prison identification cards in the yard in which they were located when
the riot ended, and Abelino and Osman were photographed in yard 3.
Defendants accurately argue that presence at the scene alone does not
support a reasonable suspicion that they participated in the riot
(Bundte, supra, 87 Cal.App.2d at p. 746), but here there is more than
mere presence. All inmates were ordered to get down during the initial
fight and during the riot. Yet, after the riot, Abelino had blood on his
sock and “obvious blood splatter” on his shorts, and Osman had a
“slashing” mark with a circular-shaped welt on his left arm consistent
14In light of this conclusion, we need not address Hernandez’s
claim that the People improperly raised new theories of guilt—that
Hernandez is liable because the charged crimes are natural and
probable consequences of the crime of misdemeanor delaying an officer
or because Hernandez directly aided and abetted the charged crimes by
committing misdemeanor delaying an officer—for the first time on
appeal in their reply brief. The People argued below and on appeal
that Hernandez participated in a riot or aided and abetted that crime
and specifically argued that Hernandez lunged at an officer, and was
seen threatening and delaying that officer, after being told to get down.
23
with being hit by a 40-millimeter exact impact round. The riot involved
attacks on officers in a specific area near the vehicle gate between
yards 2 and 3, and, while the video from the prison yard of the riot is
not in high definition, it does not show inmates close to the vehicle gate
at issue remaining in prone positions throughout the entire riot. Thus,
the physical evidence pertaining to Osman and Abelino is enough to
provide a rational ground to assume the possibility that they are guilty
of participating in the riot. While this evidence might not establish
guilt beyond a reasonable doubt, the standard of sufficient cause is
much lower. (Slaughter, supra, 35 Cal.3d at p. 637; Salazar v. Superior
Court, supra, 83 Cal.App.4th at p. 846 [prosecution’s burden at a
preliminary hearing is “exceedingly low”].)
C. Natural and Probable Consequences
Defendants briefly, with no citation to authority, argue that
mayhem, assault by a state prisoner by means of force likely to produce
great bodily injury, and battery are not natural and probable
consequences of the riot that occurred. As set forth below, in the
circumstances of this case, we disagree.
Under the natural and probable consequences doctrine, one
“ ‘who knowingly aids and abets criminal conduct is guilty of not only
the intended crime [target offense] but also of any other crime the
perpetrator actually commits [nontarget offense] that is a natural and
probable consequence of the intended crime.’ ” (People v. Medina (2009)
46 Cal.4th 913, 920.) A perpetrator of the target crime is similarly
liable for any crime committed by another principal that is the natural
and probable consequence of the target crime. (People v. Olguin (1994)
31 Cal.App.4th 1355, 1376 [perpetrator of an assault involving gang
24
members held liable under the natural and probable consequences
doctrine when a co-participant shot the victim].)
“Liability under the natural and probable consequences doctrine
‘is measured by whether a reasonable person in the defendant’s
position would have or should have known that the charged offense was
a reasonably foreseeable consequence of the act aided and abetted.’ ”
(People v. Medina, supra, 46 Cal.4th at p. 920.) “A reasonably
foreseeable consequence is to be evaluated under all the factual
circumstances of the individual case [citation] and is a factual issue to
be resolved by the jury. ” (Ibid.) The “question is not whether the aider
and abettor actually foresaw the additional crime, but whether, judged
objectively, it was reasonably foreseeable.” (Ibid.) “ ‘[T]o be reasonably
foreseeable “[t]he consequence need not have been a strong probability;
a possible consequence which might reasonably have been
contemplated is enough. ” ’ ” (Ibid.)
In this case, the evidence was sufficient to entertain a reasonable
suspicion that defendants committed the target crime of rioting in the
yard of a maximum-security prison and that, taken as a whole, the riot
involved the use of force or violence by numerous inmates against
correctional officers who were significantly outnumbered. A person
“who unlawfully and maliciously deprives a human being of a member
of his body, or disables, disfigures, or renders it useless . . . is guilty of
mayhem.” (§ 203.) Section 4501.5 prohibits a prisoner from willfully
touching a nonprisoner in a harmful or offensive manner. (CALCRIM
No. 2723.) Section 4501, subdivision (b) prohibits assault by a prisoner
“by any means of force likely to produce great bodily injury,” and, in
discussing similar statutory language, our Supreme Court has noted
25
that it is well established that “the use of hands or fists alone may
support a conviction of assault ‘by means of force likely to produce great
bodily injury.’” (People v. Aguilar (1997) 16 Cal.4th 1023, 1028
[discussing section 245, subd. (a)].)15 Given the particular
circumstances of this prison riot and the scope of force and violence
used, a person of ordinary prudence could have entertained a
reasonable suspicion that mayhem, battery, and assault by means of
force likely to produce great bodily injury were reasonably foreseeable,
and hence natural and probable, consequences of the target crime of
riot. Taking into account the “exceedingly low” standard of proof at a
preliminary hearing (Salazar v. Superior Court, supra, 83 Cal.App.4th
at p. 846), the testimony and video evidence in this case provide a “
‘rational ground for assuming the possibility that an offense has been
committed’ ” and that the defendants are guilty. (Day, supra,
174 Cal.App.3d at p. 1020.) At this stage of the criminal proceedings,
no more is required.
15 Subdivision (b) of section 4501 states in full, “Except as
provided in Section 4500, every person confined in the state prison of
this state who commits an assault upon the person of another by any
means of force likely to produce great bodily injury shall be guilty of a
felony and shall be imprisoned in the state prison for two, four, or six
years to be served consecutively.” Section 245, subdivision (a)(4) makes
it a crime to commit “assault upon the person of another by any means
of force likely to produce great bodily injury.” “The elements of the
offenses set forth in sections 4501 and 245, subdivision (a), are identical
in all respects except that section 4501 requires, as an additional
element, that the defendant be a prisoner confined in a state prison.”
(People v. Noah (1971) 5 Cal.3d 469, 479 [discussing former sections
4501 and 245].)
26
III. DISPOSITION
The superior court’s order denying the People’s motion under
section 871.5 to reinstate counts 5 through 17 of the complaint against
each defendant is reversed.
BROWN, J.
WE CONCUR:
STREETER, ACTING P. J.
TUCHER, J.
People v. Abelino et al. (A159088)
27
Trial Court: Del Norte County Superior Court
Trial Judge: Hon. Leonard J. LaCasse
Counsel:
Xavier Becerra, Attorney General, Lance E. Winters and Jeffrey M.
Laurence, Assistant Attorneys General, Seth K. Schalt and Bridget Billeter,
Deputy Attorneys General, for Plaintiff and Appellant.
Eric Weaver, under appointment by the Court of Appeal, for Defendant and
Respondent Edgar Abelino.
Gabriel Bassan, under appointment by the Court of Appeal, for Defendant
and Respondent Francisco Hernandez.
Ross Thomas, under appointment by the Court of Appeal, for Defendant and
Respondent Issajan Osman.
George M. Mavris, under appointment by the Court of Appeal, for Defendant
and Respondent David Tagaban.