Your Daily Defense

Today’s daily defense is one that rarely arises. It is, though, worth knowing about.  I haven’t been at this that long and it has come up for me one time.  The DA conceded the issue when I 995’d it. I call this defense the “transactionally related” rule.

The Situation
You are PUMPED because the judge discharged a few counts after the px. You get the information.  You see the discharged counts added to the information. You do some research and see that the DA cannot refile discharged counts if the judge made a factual finding that would prohibit refiling. Such as a rape case where the judge makes a factual finding that CW is lying.  Bat’s chance outta hell nowadays.  Anyway, the question is, can the DA add new charges to the information when D was never held to answer to them even though there was evidence of that crime at the px?

Another situation is the case proceeds very quickly.  The complaint does not charge everything it can.  The DA doesn’t amend it.  Many other crimes are revealed at the PX.  When the DA files the information she adds charges for offenses that the evidence at the px established even though, technically, D was never held to answer to those charges. Can she do that?

The rule:
The DA can only add charges to the information for which D was not held to answer if 1) there was evidence of the charge at the px AND 2) the offense is transactionally related to the offense for which D was held to answer.  Don’t despair. “Transactionally related” is MUCH MORE NARROW than you think.  IT IS NOT the same as “a course of conduct.”  See more below.

The reason for the rule:
California’s constitution guarantees criminal defendants in a felony matter to be free from prosecution for offenses unless a magistrate or grand jury has determined that the prosecution is justified. (Parks v. Superior Court(1952) 38 Cal. 2d 609, 611; Cal. Const. Art. 1, Section 14.)  In tension with this rule is that, if the DA goes by way of px, the DA is allowed to charge in the information offenses to which the defendant was not held to answer.  (Penal Code section 739.)  There is a tension because if the DA can add charges to the information that D was not held to answer to then, technically, a magistrate has not determined that the prosecution was justified.

To resolve the tension between these rules, the California Supreme Court held in Parks that the DA may only file offenses for which the defendant has not been held to answer if those offenses are “related crimes shown by the evidence taken before the magistrate bearing on the transaction involved in the commitment order.”

What is the “transaction”?
Surprisingly, with the exception of a some bad sex cases (man sex cases always result in the worst law), the law is very good on how narrow a transaction is. If the offenses are distinct and separate, even if they are part of a course of conduct, they are not transactionally related. (Mulkey v. Superior Courtsupra, 220 Cal. App. 2d at p. 824.) (Mulkey v. Superior Court, supra, 220 Cal. App. 2d at p. 824.)

Here are some examples of cases where the court said the added charges were not transactionally related:
  • Parks v. Superior Court (1952) 38 Cal.2d 609.  D supposedly did a bunch of fraudulent transactions with different people.  The DA only proved one incident with one victim at the preliminary hearing, although the complaint had initially alleged offenses related to 2 other victims.  D was held answer to the offenses related to only one victim.  The DA filed an information with the offenses for all 3 victims. The court said that it does not matter if this was a course of conduct, the offenses involving the other two victims were not part of the same transaction as the one that D was held to answer.  
  • Mulkey v. Superior Court (1963) 220 Cal.App.2d 817.  D was charged with several counts for cashing stolen checks made out to him as the payee at several different stores.  Each count involved a different incident in a different store.  The checks were all stolen from D’s brother and all made out to D as the payee.  D was not charged with the theft of the checks, only uttering a forged check.  Only one victim could identify D.  The judge discharged the counts where D was not identified.   The DA filed the information adding the charges that were discharged.  The appellate court said it doesn’t matter that the checks were all stolen at once and that D was the payee in all the checks.  Because each presentation of the forged check for cashing was a separate a distinct offense, they were not transactionally related, and the DA was barred from charging them.
  • People v. Saldana (1965) 233 Cal. App. 2d 24: just because offenses occurred simultaneously they are not transactionally related.  D charged in the complaint with rape.  At px it came out that he had a joint in his pocket during the rape.  DA adds to the information a count for possession of marijuana.  Held:  That D simultaneously committed the rape and the possession of marijuana was insufficient to establish that the offenses were transactionally related.  Because there was no causal connection between the offenses, they were not transactionally related. 
  • Ondarza v. Superior Court (1980) 106 Cal.App.3d 195: Factors to consider when evaluating whether offenses are part of the same transaction are if the crime added is dissimilar to the offense for which D was held to answer and if different individuals were involved in the different offenses.  The allegations were that D offered to sell an undercover cop a stolen leather jacket and gave him the phone number of someone from whom the officer could by cocaine.  The magistrate discharges the cocaine sale count on a legal, not a factual, basis. The DA refiles the cocaine sale count. Cheapest sale of cocaine charge ever.  Anyway, the appellate court said it doesn’t matter that he negotiated the sale of the jacket and the sale of cocaine in the same financial transaction; the offenses are just too different, involving different people (e.g. the third party who sold the cocaine) for the offenses to be transactionally related under the Park test.
Here are examples where they were transactionally related:
  • People v. Evans (1952) 39 Cal3d 242.  Not a lot of analysis. D was charged with 288 in the complaint. After the px the DA added 288a and assault with a deadly weapon. The court said this was ok.  There really is not any analysis of why or distinction from Parks, this is all they say: ” The Parks case is controlling here inasmuch as the story told by the complaining witness shows that the two crimes were related to and connected with the transaction which was the basis for the commitment order.”  The story was that D grabbed her leaving a park, exposed himself, and molested her a knifepoint.
  • People v. Downer (1962) 57 Cal.2d 800. D was charged with offenses related to molesting his daughter.  The DA added charges to the information that were not on the complaint for an incident on a different date than those in the complaint.  The court said that this was fine because the crime, although different from the others that D was held to answer to, bore on the same transaction of those in the commmitment order.  Again, weird and not very clear why when this was a completely separate event and Mulkey explicitly states: “Admittedly the circumstances do show a ‘course of conduct,’ but this in itself is not a sufficient showing of a related or connected transaction justifying the added counts in the information… To allow the showing of a ‘course of conduct’ to constitute sufficient relationship to permit the added counts would be a return to the discredited approach in People v. Wyatt, supra, 121 Cal.App. 180, 8 P.2d 901, and throw constitutional doubt on the procedure. (Parks v. Superior Court, supra, 38 Cal.2d 609, 241 P.2d 521.) “

What if you win?
In my experience, if you win a 995 on this issue but other counts remain it is a great time to resolve the case (unless the other counts are defensible, obviously).  My husband, who I explained this rule to, asked me a question that had not but should have occurred to me. Let’s say you win the 995 on this issue.  Then what? Can the DA make a motion to ask the judge to review the preliminary hearing transcript and issue a holding order on the charges she wants to add to the information, assuming that the evidence is there? Or are you entitled to a whole new px? So I thought about this a little more.  In scenario A, where the magistrate discharged a count or counts without making a factual finding, the DA — for practical reasons — cannot just go back to the magistrate to ask him/her to hold your client to answer on previously discharged counts.  Obviously the magistrate discharged those counts for a reason, so why would he/she then change his/her mind and hold D to answer to them?

In scenario B, though, where the prosecutor added charges that were not discharged and never in the complaint, what would prevent the prosecutor from requesting a holding order on those charges to cure the procedural defect of not asking for said holding order before filing the information? I do not know, I need to research it and I’m not sure if the answer is out there. 

Published by Jenny Brandt

About Me: sociology, african american studies, chicano/a studies, critical race studies, and criminal law scholar. public school kid from kindergarten-J.D. Former public defender. I am a post-conviction guru. Appeals. Sentencing. Withdraw Pleas. Habeas. Published author in the Criminal Law Bulletin and California Defender. "I do it for the joy it brings, because I'm a joyful girl, because the world owes me nothing, and we owe each other the world." Why I started JJC: My PD buddy suggested it. What and who JJC is inspired by: public defenders I have worked for, with, and next to. my clients who have battled things no one should and are still here. innocence and guilt and everything in between. My coworkers, who fight just as hard as the PDs I love, for many of the same reasons. My husband who was once voted "most Christ like" (every Jewish girl's dream). My Corgi who loves everyone. The constitution. Tabloids. My mom, for giving me a voice. My dad, for teaching me what to say. My brother, for teaching me how to say it.

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