People v. Kim ( 2024 )

Filed 2/16/24
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B327473
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BA498018)
v.
WOODROW KIM et al.,
Defendants and
Respondents.
APPEAL from an order of the Superior Court of Los
Angeles County, Norman J. Shapiro, Judge. Reversed and
remanded with instructions.
George Gascon, District Attorney, and Tracey Whitney,
Deputy District Attorney, for Plaintiff and Appellant.
Bobbitt, Pinckard & Fields and Richard L. Pinckard for
Defendant and Respondent Woodrow Kim.
Law Offices of Pelayes & Yu and Tom Yu for Defendant
and Respondent Jonathan Miramontes.
I. INTRODUCTION
The Los Angeles County District Attorney appeals from an
order denying the prosecution’s motion under Penal Code section
871.5 1 to compel the magistrate to reinstate charges accusing
defendants 2 of filing false peace officer reports in violation of
former section 118.1. 3 According to the District Attorney, the
evidence presented at the preliminary hearing was sufficient to
allow this matter to proceed to trial on the charged offenses. We
reverse.
1 All further statutory references are to the Penal Code
unless otherwise stated.
2 Defendants are Los Angeles County Sheriff’s Department
Deputies Woodrow Kim and Jonathan Miramontes.
3 Former section 118.1 was repealed effective
January 1, 2022, and replaced with current section 118.1. (Stats.
2021, ch. 267, § 1.) The changes to the provision implemented by
that repeal and reenactment are not relevant to this appeal.
Therefore, all further references to section 118.1 will be to the
language of that provision in effect at the time defendants
allegedly committed the charged offenses, September 19, 2018.
2
II. FACTUAL BACKGROUND
A. Officer-Involved Shooting 4
On September 19, 2018, Deputy Kim was working a regular
patrol assignment with his partner Deputy Miramontes. Deputy
Kim was driving their patrol car that day. The deputies received
a call advising that a Sheriff’s unit following a black BMW had
requested assistance in executing a traffic stop. Based on the
call, defendants understood that someone in the BMW confronted
a person, announced a gang affiliation, asked that person where
he was from, and then pointed a gun at him. Deputy Kim thus
believed at least one occupant of the BMW was armed.
The deputies responded and followed the BMW along with
two other patrol cars into the east parking lot of Salazar Park, a
location known to Deputy Miramontes for gang activity. The
BMW proceeded through the parking lot, but then turned,
jumped a curb, and drove into the park, traveling at a high rate
of speed across the grass playing fields. As the BMW came to a
stop near a cul-de-sac, one of the occupants, Martinez, exited and
ran across the grass. The ensuing interaction between Martinez
and defendants’ patrol car, as described in their police reports, is
the focus of this appeal. At approximately the same time as that
interaction, deputies from the other two patrol cars were involved
in a shooting incident near the cul-de-sac during which two
4 The facts of the pursuit of the suspect vehicle and
subsequent officer-involved shooting are undisputed and included
to lend context to the reports describing defendants’ interactions
with one of the suspects, Hector Martinez.
3
deputies were shot and the two remaining occupants of the BMW
were killed.
B. Deputies’ Statements at the Scene
On the evening of September 19, 2018, Sergeant Michael
Lennig responded to the command post near the Salazar Park
shooting scene. He spoke with two field sergeants who advised
that, shortly after the incident, Deputies Kim and Miramontes
had reported being in a “‘traffic collision’” with Martinez.
C. Deputy Kim’s Report (September 19, 2018)
On the day of the shooting, Deputy Kim filed a report,
entitled “Supplemental Report” and bearing a Los Angeles
County Sheriff’s Department file number. The report described
the crime as “Attempt[ed] murder on a peace officer” and listed
Martinez’s name and booking number. In that report, Deputy
Kim described his pursuit of the BMW and then provided the
following statement concerning the deputies’ interactions with
Martinez: “While driving to the location of the [black BMW], I
saw a male Hispanic (later identified as Martinez . . .) exit the
passenger side of the vehicle and run west through the park[.] I
drove my patrol vehicle towards the direction of S/Martinez. I
positioned and drove my patrol vehicle approximately six feet
north from S/Martinez. As I got closer to S/Martinez, I opened
my driver side door believing my partner and I would get into a
foot pursuit of [him]. As I closed the gap between S/Martinez and
our patrol vehicle, [he] stopped running and began walking
towards our patrol vehicle. I attempted to stop my patrol vehicle
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to prevent a collision with S/Martinez. [He] walked closer to our
patrol vehicle and collided with the front passenger [(sic)] door.
After S/Martinez collided with the driver side door he was still
standing. I ordered S/Martinez to lay on the ground. As my
partner and I were detaining S/Martinez at gun point, I heard
approximately 10–15 gunshots from the area of where the
suspect vehicle was stopped[.]”
D. Deputy Miramontes’s Report (September 19, 2018)
On the day of the shooting, Deputy Miramontes also filed a
supplemental report bearing the same Los Angeles County
Sheriff’s Department file number, describing the crime as
“Attempt[ed] Murder on a Peace Officer,” and listing Martinez’s
name and booking number. Deputy Miramontes wrote: “I saw a
male Hispanic (later identified as S/Martinez) [ ] exit the suspect
vehicle front passenger door and begin running west through the
grass field. We followed S/Martinez with our vehicle in an
attempt to detain him and saw he was running toward a narrow
walkway that was constricted by fencing. Due to the fact that
our patrol vehicle would not be able to continue following
S/Martinez, I unbuckled my seatbelt and opened my door pending
the possibility of a foot pursuit of an armed assault with a deadly
weapon suspect. It should be noted that there were several
children and families in the surrounding park area. [¶] My
partner (Deputy Kim) immediately brought our vehicle to a halt
as soon as we saw S/Martinez attempt to give up suddenly
stopping and turning toward us. I exited our vehicle and ordered
S/Martinez to lay on the ground and show me his hands.
Simultaneously, I heard several gunshots behind me. Deputy
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Kim provided cover for me as I handcuffed S/Martinez without
further incident.”
E. Traffic Collision Investigation (September 20, 2018)
The day following the shooting, Sergeant Lennig and
Lieutenant Edmundo Torres interviewed Martinez, who claimed
that he had been “run over” by deputies. Sergeant Lennig
decided to conduct an inquiry. He first spoke to Deputy Kim who
informed him that there was “a lot of commotion going on” at the
Salazar Park scene because two deputies had been shot. The
deputy also said that the officers were “scared for their lives.”
Using a Google map, Deputy Kim showed the sergeant the
location of the collision with Martinez.
Sergeant Lennig also spoke to Deputy Miramontes on the
evening of September 20, 2018. The deputy told him that they
“‘crashed in[to]’” or “‘collided . . . with’” Martinez.
F. Video of Martinez Apprehension
Investigators obtained residential surveillance video
footage of the incident that occurred on September 19, 2018, at
Salazar Park. The video shows defendants’ patrol car traveling
at high speed across the grass field of the park. The view of the
car is then blocked by some trees; but when the car comes back
into view, the video shows Martinez upright just as the car’s
driver’s door makes contact with him. Following the impact,
Martinez is thrown forward, tumbles to the ground, rolls several
times, and then lies motionless. The patrol car comes to a
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complete stop and Deputy Miramontes exits just before Martinez
finishes rolling on the ground.
III. PROCEDURAL BACKGROUND
On August 25, 2021, the District Attorney filed a felony
complaint alleging in count 1 that defendants filed false peace
officer reports in violation of section 118.1; and in count 2 that
Deputy Kim assaulted Martinez in violation of section 149. 5 On
August 11, 2022, the Honorable Ronald S. Coen, sitting as a
magistrate, held a preliminary hearing. Following testimony and
arguments, Judge Coen stated, as relevant to count 1, “[A]nd
going back over my notes and going back over the viewing of the
evidence, counsel has convinced me. I see insufficient evidence as
to count 1 as to each defendant.” He then dismissed the
complaint.
On August 24, 2022, the prosecution filed a motion under
section 871.5 to compel the magistrate to reinstate the complaint.
Following a hearing on September 22, 2022, the trial court, the
Honorable Norman Shapiro presiding, denied the motion.
The District Attorney filed notices of appeal from the denial
of the section 871.5 motion 6 on November 21, 2022.
5 At the preliminary hearing, the prosecution submitted to
the dismissal of count 2 and the District Attorney does not
request reversal of that ruling.
6 Section 1238, subdivision (a)(9) provides that “[a]n appeal
may be taken by the people from” “[a]n order denying the motion
of the people to reinstate the complaint or a portion thereof
pursuant to Section 871.5.”
7
IV. DISCUSSION
A. Standard of Review
“On appeal from an order denying a motion to reinstate a
criminal complaint under section 871.5,[7] we disregard the
superior court’s ruling and directly examine the magistrate’s
ruling to determine if the dismissal of the complaint was
erroneous as a matter of law.” (People v. Massey (2000) 79
Cal.App.4th 204, 210.) If the magistrate makes factual findings,
we review those findings for substantial evidence. (People v.
Slaughter (1984) 35 Cal.3d 629, 639 (Slaughter).) But if the
magistrate makes no factual findings, we review the decision
dismissing the charges de novo. (Id. at pp. 641–642.) Such
findings are “erroneous as a matter of law if the evidentiary
record discloses a rational basis for believing the defendant guilty
of the charged crime.” (Id. at p. 642.)
B. Analysis
Here, the magistrate made no factual findings when he
dismissed the complaint. We therefore consider whether the
evidentiary record discloses a rational basis for believing that the
defendants are guilty of violating section 118.1.
7 Section 871.5, subdivision (a), provides in pertinent part:
“When an action is dismissed by a magistrate . . . , the prosecutor
may make a motion in the superior court within 15 days 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.”
8
1. Section 118.1
Defendants were charged in August 2021 with violating
section 118.1, subdivision (a) which, at that time, provided:
“Every peace officer who files any report with the agency which
employs him or her regarding the commission of any crime or any
investigation of any crime, if he or she knowingly and
intentionally makes any statement regarding any material
matter in the report which the officer knows to be false, whether
or not the statement is certified or otherwise expressly reported
as true, is guilty of filing a false report punishable by
imprisonment in the county jail for up to one year, or in the state
prison for one, two, or three years. This section shall not apply to
the contents of any statement which the peace officer attributes
in the report to any other person.”
As charged, the offense of filing a false report required the
prosecution to prove that: (1) the defendant was a peace officer;
(2) the defendant knowingly and intentionally made a statement
in a report filed with the agency that employed him; (3) the
statement was made regarding the commission or investigation of
a crime; (4) the statement was false; (5) the statement was
material; and (6) the defendant knew the statement was false.
We consider below, as to each defendant, the preliminary hearing
evidence in support of each of those elements under the de novo
standard governing our review.
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2. Deputy Kim
First, there is no dispute that, as a deputy of the Los
Angeles County Sheriff’s Department, Deputy Kim was a “peace
officer.” (§ 830.1, subd. (a).) And, our review of Deputy Kim’s
September 19, 2018, report demonstrates that it is a Los Angeles
County Sheriff’s Department “Supplemental Report” that was
filed by the deputy with that Department regarding an
“Attempt[ed] murder on a peace officer.” Thus, we reject Deputy
Kim’s characterization of the report as “essentially reporting a
collision—a traffic event” that did not relate to the commission or
investigation of any crime. Instead, the evidence supported a
rational inference that the report was a peace officer report
regarding the investigation of the attempted murders of fellow
officers.
There is also no dispute that Deputy Kim, as the author of
the report who submitted it during the regular course of his
duties, knowingly and intentionally made the challenged
statements in that report. As to whether Deputy Kim’s
statements in the supplemental report describing the collision
with Martinez were false, the deputy stated that Martinez
“walked closer to our patrol vehicle and collided with the front
passenger [(sic)] door. After S/Martinez collided with the driver
side door he was still standing.” The surveillance video, however,
depicted the patrol car’s door hitting Martinez with sufficient
force to propel him forward and then to the ground. Thus,
Deputy Kim’s statement that Martinez was “still standing” after
the impact was false.
We next consider whether the false statement was
material. We have found no case defining the term “material” in
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the context of a prosecution for filing a false report in violation of
section 118.1. That term, however, has been defined in cases
involving prosecutions for perjury in other contexts. For
example, in the context of perjury prosecutions under section 118
based on false testimony at trials and administrative hearings, a
statement is material if it is probable that it would “influence[ ]
the outcome of the [relevant] proceedings.” 8 (People v. Pierce
(1967) 66 Cal.2d 53, 61.) In perjury cases more analogous to this
one, however, in which the prosecution is based on the filing of a
false affidavit or declaration under perjury, there is no
“proceeding” the outcome of which could be influenced by
submission of a false statement. (People v. Hedgecock (1990) 51
Cal.3d 395, 405.) Thus, in a prosecution based on a false filing,
“an omission or misstatement of fact is material if there is a
substantial likelihood that a reasonable person would consider it
important in evaluating” the information reported against the
purpose for which it is required. (Id. at p. 406; see People v.
Rubio (2004) 121 Cal.App.4th 927, 933 [“material” is defined as
“‘important, essential, or pertinent (to the matter under
discussion)[ ]’ (Webster’s New World Dict. (3d college ed. 1988,
p. 834)[ ]”; therefore, “the false statement [in the filing] must be
important to the matter under discussion”].)
In determining the proper construction of the term
material as used in section 118.1, we may also consider the
8 CALCRIM No. 2640, the jury instruction used in
prosecutions for perjury under section 118 based on false
testimony at trial, defines “material” as follows: “Information is
material if it is probable that the information would influence the
outcome of the proceedings, but it does not need to actually have
an influence on the proceedings.”
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legislative history of that section. (See Doe v. City of Los Angeles
(2007) 42 Cal.4th 531, 544 [interpretation of statutory language
may be confirmed by review of legislative history]; Haniff v.
Superior Court (2017) 9 Cal.App.5th 191, 202 [legislative history
may provide additional authority confirming the court’s
interpretation of a statute].) Our review of that history shows
that section 118.1 was enacted to deter the practice of “‘creative
report writing’” by police officers and hold them more accountable
for false reporting. (Sen. Boatwright, sponsor of Sen. Bill No.
2681 (1989–1990 Reg. Sess.), letter to Sen. Rules Com., Mar. 7,
1990, p. 4; Sen. Com. on Judiciary, com. on Sen. Bill No. 2681
(1989–1990 Reg. Sess.), Apr. 24, 1990, pp. 2, 3; Sen. Rules Com.,
Off. of Sen. Floor Analysis, 3d reading analysis of Sen. Bill No.
2681 (1989–1990 Reg. Sess.) May 22, 1990, p. 2; Sen. Rules Com.,
Off. of Sen. Floor Analysis, Rep. on Sen. Bill No. 2681 (1989–1990
Reg. Sess.) Aug. 17, 1990, p. 2; Sen. Boatwright, letter to
Governor George Deukmejian re: Sen. Bill No. 2681 (1989–1990
Reg. Sess.), Aug. 23, 1990, Governor’s chaptered bill file.)
In 1990, the Legislature considered a bill proposed by
Senator Daniel Boatwright in response to a well-publicized
traffic-stop arrest of off-duty City of Hawthorne police officer Don
Jackson by officers from the City of Long Beach. While engaged
in a private “sting” operation, Jackson was stopped, reportedly
without cause, by two Long Beach officers, one of whom swore at
Jackson and then pushed his head through a plate glass window.
The encounter was recorded by television cameras that were
following Jackson. The officers’ report of the incident deviated
substantially from the events depicted in the video tape, and one
of the officers subsequently admitted making false statements in
the report after being confronted with the video. (Sen. Com. on
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Judiciary, com. on Sen. Bill No. 2681 (1989–1990 Reg. Sess.),
Apr. 17, 1990, p. 2; Sen. Boatwright, sponsor of Sen. Bill No. 2681
(1989–1990 Reg. Sess.), letter to Sen. Rules Com., Mar. 7, 1990,
pp. 1–2.)
A Senate Select Committee held a hearing to examine the
Jackson incident, which included testimony that officers did not
take the current punishments for filing false reports seriously.
(Sen. Com. on Judiciary, com. on Sen. Bill No. 2681 (1989–1990
Reg. Sess.), Apr. 17, 1990, p. 2; Sen. Com. on Judiciary, com. on
Sen. Bill No. 2681 (1989–1990 Reg. Sess.), Apr. 24, 1990, p. 3;
Sen. Rules Com., Off. of Sen. Floor Analysis, 3d reading analysis
of Sen. Bill No. 2681 (1989–1990 Reg. Sess.) May 22, 1990, p. 2.)
Following the hearing, Senator Boatwright introduced Senate
Bill No. 2681 to give teeth to the offense of filing a false report 9
by making it part of section 118, which defined the offense of
perjury and punished it as a felony. (Sen. Bill No. 2681 (1989–
1990 Reg. Sess.), as introduced Mar. 2, 1990; Sen. Boatwright,
sponsor of Sen. Bill No. 2681 (1989–1990 Reg. Sess.), letter to
Sen. Rules Com., Mar. 7, 1990, pp. 1, 4.) In response to certain
objections, however, the offense was removed from section 118
and inserted in a new section 118.1. (Sen. Amend. to Sen. Bill
No. 2681 (1989–1990 Reg. Sess.) May 2, 1990; Assem. Amend. to
Sen. Bill No. 2681 (1989–1990 Reg. Sess.) June 26, 1990, pp. 1–
3.) The new offense was no longer defined as perjury, but rather
9 At the time, Government Code section 6204 defined the
offense of filing a false police report and punished it as a
misdemeanor. (Former Gov. Code, § 6204.) That section was
repealed by the enactment of section 118.1.
13
as the crime of filing a false report punishable as a “wobbler.” 10
(Assem. Amend. to Sen. Bill No. 2681 (1989–1990 Reg. Sess.)
June 26, 1990, at p. 3.) The Governor signed the revised version
of section 118.1 on September 14, 1990 (Stats. 1990, ch. 950, § 3),
and it remained substantially unchanged as the offense charged
in this case on August 25, 2021.
In successfully arguing for its passage, advocates of Senate
Bill No. 2681 emphasized the importance of ensuring that police
officers complied with their obligations to file accurate and
truthful peace officer reports. That background thus supports a
construction of the materiality requirement similar to the
definition of materiality in the context of the false filing cases
discussed above. Specifically, the materiality of a peace officer
statement in a report should be evaluated in light of the purpose
for which it is required and consistent with the enactment’s
underlying policy of encouraging accurate and truthful report
writing. A statement therefore is material if there is a
substantial likelihood that a reasonable person reviewing the
statement would deem it to be an important part of the police
report, and not a trivial detail.
Deputy Kim’s statements were material because, in our
view, they are precisely the type of “creative report writing” that
section 118.1 was enacted to deter. He was tasked with providing
a reliable description of the pursuit, the shootings, and the
deputies’ apprehension, without purported incident, of Martinez,
who had been a passenger in the BMW at the center of the
officer-involved shootings in Salazar Park. Thus, a rational fact
10 A “wobbler” is “an offense which may be charged and
punished as either a felony or a misdemeanor.” (Davis v.
Municipal Court (1988) 46 Cal.3d 64, 70.)
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finder could deem Deputy Kim’s statement that the fleeing
Martinez walked into defendants’ patrol car and remained
standing after contact an important part of the police report, and
not a trivial detail. (See People v. Korbin (1995) 11 Cal.4th 416,
430 [materiality is an issue of fact for the jury].)
Finally, we consider whether there was a rational basis for
believing that Deputy Kim knew the statement was false. This
inquiry focuses on the deputy’s state of mind at the time he
authored and submitted his supplemental report. (See People v.
Madrid (1992) 7 Cal.App.4th 1888, 1899 [a showing that a peace
officer affidavit in support of search warrant contains material
omissions or misstatements which were made either intentionally
or with a reckless disregard for the truth “must focus on the state
of mind of the affiant”].)
Deputy Kim argues that his fear during the incident could
have altered his perception, such that his statement about his
interaction with Martinez was not knowingly false. He also
contends that his oral admissions about being involved in a
traffic collision demonstrate that he innocently or mistakenly
made a false statement and thus did not act with the requisite
criminal intent. These arguments could prove persuasive at later
stages of the proceedings, depending on the evidence presented.
But, at the preliminary hearing stage, the magistrate “does not
decide whether [the] defendant committed the crime, but only
whether there is ‘“some rational ground for assuming the
possibility that an offense has been committed . . . .”’” (Slaughter,
supra, 35 Cal.3d at p. 637.)
Deputy Kim was just on the other side of the driver’s door
of his patrol car when it impacted Martinez, close enough to have
a clear view of the event as depicted in the video. It is thus
15
reasonable to infer that he observed Martinez being knocked to
the ground and that, at the time he authored his supplemental
report, he knew that his description of Martinez walking toward
the patrol car, colliding with the door, and having the ability to
remain standing following the collision was false.
3. Deputy Miramontes
We next consider whether the magistrate erred when he
dismissed count 1 as to Deputy Miramontes. For the reasons we
discuss above in connection with Deputy Kim’s supplemental
report, we conclude that the prosecution sufficiently
demonstrated that Deputy Miramontes was a peace officer who
knowingly and intentionally filed a report with the agency that
employed him “regarding the commission of any crime or any
investigation of any crime.” (§ 118.1, subd. (a).)
As to whether the evidence at the preliminary hearing
provided a rational basis for concluding that the deputy’s
challenged statement was false, the District Attorney argues that
Deputy Miramontes’s supplemental report was false and
misleading due to a material omission: It did not “mention that
the patrol car door struck Martinez at all.” Deputy Miramontes
counters that his supplemental report was accurate because he
correctly described Martinez’s actions, namely, “he stated that
Martinez turned around and the video evidence uncontrovertibly
demonstrates this.”
For purposes of this appeal, we need not decide whether
material omissions, as opposed to affirmative statements of fact,
can form the basis of a prosecution under section 118.1. Nor do
we need to resolve whether the video depicts Martinez turning
16
toward the patrol car just prior to the collision. Deputy
Miramontes’s report includes at least two affirmative statements
of fact that a reasonable trier of fact could have found false:
(1) “[m]y partner (Deputy Kim) immediately brought our vehicle
to a halt as soon as we saw S/Martinez attempt to give up . . .”;
and (2) “I exited our vehicle and ordered S/Martinez to lay on the
ground . . . .”
The video evidence demonstrates that defendants’ patrol
car came to a stop only after striking Martinez, and not
immediately upon Martinez purportedly “attempt[ing] to give
up.” Moreover, although the clips do not include audio, the
sequence of events depicted in the video, which show that
Martinez was already lying on the ground when Deputy
Miramontes exited the patrol car, supports an inference that
Miramontes did not “order” Martinez to lay on the ground.
Indeed, given that sequence, such an order would have been
superfluous.
But even if Deputy Miramontes ordered Martinez to the
ground, in the context of the supplemental report, his statement,
which immediately follows a description of Martinez turning
toward the car, suggested that Martinez went to the ground of his
own volition, and only after the deputy’s order. Any such
suggestion, however, was contrary to the video’s depiction of
Martinez being knocked to the ground by the patrol car and
thereafter lying motionless as Deputy Miramontes emerged from
the car. The video evidence thus supported a rational basis for
believing that the deputy’s statements were false.
As to whether these false statements were material, as we
discuss above in connection with Deputy Kim’s report, a rational
17
fact finder could find that the statements were important parts of
Deputy Miramontes’s report and not trivial details.
Finally, as to whether Deputy Miramontes knew that his
statements were false, as a passenger in the patrol car in close
pursuit of Martinez, he was in a position to observe whether
Deputy Kim immediately stopped the car after Martinez
purportedly gave himself up (as written in the report), or stopped
the car only after colliding with Martinez (as depicted in the
video). Similarly, as the arresting officer, Deputy Miramontes
was in a position to know whether Martinez went to the ground
as a result of his order, or was knocked to the ground before any
such order could be given. Accordingly, the evidence was
sufficient to meet the prosecution’s relatively low burden of proof
at the preliminary hearing.
4. Conclusion
Based on our de novo review of the evidentiary record, we
conclude there is a rational basis for believing that each
defendant committed the crime of filing a false report in violation
of section 118.1. Therefore, the trial court erred by denying the
motion to compel the magistrate to reinstate the complaint.
C. Remand
Defendants argue that, if we reverse the order denying the
District Attorney’s motion to reinstate the complaint, the matter
should be remanded to the magistrate for specific factual
findings. We disagree. We have determined the issue of probable
cause as a matter of law; thus, there would be no purpose served
18
by remanding to allow the magistrate to exercise his discretion to
make factual findings in support of his dismissal order. (See
People v. Childs (1991) 226 Cal.App.3d 1397, 1409.)
Deputy Miramontes also requests that we remand to allow
the magistrate to determine under section 17, subdivision (b) that
the matter is a misdemeanor. We will remand to the trial court
with instructions to enter a new order compelling the magistrate
to reinstate count 1 as to both defendants and returning the
matter to the magistrate for resumption of proceedings pursuant
to section 871.5, subdivision (e). Nothing in this opinion
precludes a defendant, upon the resumption of proceedings before
the magistrate, from making a motion pursuant to section 17,
subdivision (b).
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V. DISPOSITION
The trial court’s order denying the motion to compel the
magistrate to reinstate the complaint is reversed and the matter
is remanded to the trial court with instructions to enter a new
order granting the motion and returning the matter to the
magistrate for resumption of proceedings pursuant to section
871.5, subdivision (e).
KIM, J.
We concur:
BAKER, Acting P. J.
MOOR, J.
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