DA Maggie Fleming's administration inherited this case and DDA Andrew Isaac is currently prosecuting the case and the jury trial.
As I discussed in another link below, with just the remaining Count 2 motion left, the defense can file a Romero motion. Carter could still accept the People's offer before trial.
I already reported on the bail/or hearing with DDA Andrew Issac's remarks. See link below. On Friday, this is what I posted:
There was a very brief disposition and reset hearing this morning in Courtroom 1 right now. No resolution in the Carter case.
The title sums up what happened at the hearing. No one else but Carter's wife and I were in the courtroom.
Pre trial June 1 at 2 p.m. Trial Confirmation June 24 at 2 p.m
The following is from Carter's defense attorney, Michael Acosta summing up the last two posts.
"Bail/OR review hearing: Defendant requested schedule bail of $100,000, People opposed reduction from $1.25 Million. Judge Feeney orders reduction to $250,000. Still beyond Carter's reach. So, he remains in custody. Set for trial on a time not waived basis within 60 days on County 2, Possession of a Firearm by a Prohibited Person.
This is the 995 motion that got the murder charge dismissed against Benjamin Carter, as amended and granted, Motion as to Count 1 granted. Motion as to County 2, corrected per 995a as follows:
PC Section 995a.
(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. When remanding the cause to the
committing magistrate, the court shall state in its remand order
which minor errors it finds could be expeditiously cured or
(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.
(3) The procedure specified in this subdivision may be utilized
only once for each information filed."
Here is the entire text of the 995 motion that got the murder charge dismissed against Carter:
MICHAEL P. ACOSTA, ESQ.
Attorney for Defendant
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF HUMBOLDT
PEOPLE OF THE STATE OF CALIFORNIA,
BENJAMIN JASPER CARTER,
Case No. CR1402688
FIRST AMENDED NOTICE OF MOTION
TO SET ASIDE INFORMATION
(Penal Code §995)
Judge: Hon. John T. Feeney
Date: May 13, 2015 2p.m.
TO THE DISTRICT ATTORNEY OF HUMBOLDT COUNTY AND/OR HER REPRESENTATIVE:
PLEASE TAKE NOTICE that at the above date and time, or as soon thereafter as the matter may be heard, the defendant will move for an order setting aside the information filed herein. The motion will be made on the ground that the defendant was committed without reasonable or probable cause and/or that the defendant's due process rights have been violated by the addition of new allegations to the information after the preliminary examination. The motion will be based on this notice of motion, on the memorandum of points and authorities served and filed herewith, on the transcript of the preliminary examination, and on such oral argument as may be presented at the hearing on this motion.
Michael P. Acosta, Esq.
Attorney for Defendant
MEMORANDUM OF POINTS AND AUTHORITIES
I. STATEMENT OF THE CASE
A criminal complaint in this matter was filed on June 3, 2014 consisting of two counts, and alleging in Counts 1 and 2, respectively, that the defendant had violated Penal Code §187(a) [Murder] and Penal Code §451(b) [Arson of an Inhabited Structure or Property]. A two-day preliminary hearing was held on August 12th and 13th , 2014 before the Honorable Judge Dale A. Reinholtsen, after which the defendant was held to answer only for the violation of Penal Code §187(a). An Information was subsequently filed on August 20, 2014 , alleging in Counts 1 and 2, respectively, that the defendant had violated Penal Code §187(a) [Murder] and Penal Code §29800(a) [Possession of a Firearm by a Felon].
II. STATEMENT OF FACTS
On or about April 16, 2014, during the late evening hours, the defendant, Benjamin Jasper Carter, was present, as a social guest, at the residence of Tommy Smith, a single-wide trailer located on a parcel adjacent to Connick Creek Road Garberville CA. [Reporter's Transcript of Preliminary Examination, page 5, lines 15-28]. Mr. Smith had expressly invited Mr. Carter, along with his wife, Melinda Carter, to his residence for a barbecue, at the request of Mrs. Carter's younger sister, Margaret Bigger, with whom Mr. Chapman, the alleged victim, had recently ended an intimate relationship. [Id., page 5, lines 25-28, p. 30, lines 1-8]. After dinner, Ms. Bigger received communications from Zachery Jacob Chapman, the alleged victim, with whom Ms. Bigger had recently ended a relationship. [Id., p.6, lines 10-14, 19-22]. In those communications, Mr. Chapman asked Ms. Bigger if he was interrupting something, then told Ms. Bigger that he wanted to talk to Mr. Smith and that he didn't want her hanging out with Mr. Smith, and that he (Mr. Chapman) wanted a shotgun that he claimed some possessory interest in. [Id., page 6, lines 10-14, 27-28, page 7, lines 14-15]. Mr. Chapman ended the communications to Ms. Bigger by stating that he was coming to Mr. Smith's residence. [Id., page 7, lines 7-9, 19-21] Ms. Bigger directly informed Mr. Smith and Mrs. Carter of Mr. Chapman's imminent arrival. [Id., page 7, lines 23-25]. Mr. Smith's proximate reaction to this information was to arm himself with a .22 caliber rifle, turn off all of the trailer's interior lights with the exception of one bedroom light, exit the trailer into its dimly lighted yard, and cower behind a nearby tree, leaving his three social guests on their own.[Id., page 68, lines 18-27]. The defendant had gone outside after dinner and it is unclear whether Mr. Carter knew of Mr. Smith's imminent arrival. [Is., page 68, line 6].
Mr. Chapman's approach was first heard from a distance, as his black Chevrolet Camaro made its way up the winding course of Connick Creek Road to Mr. Smith's gated yard. As witnessed by Mr. Smith, according to Detective Cheryl Franco, Mr. Chapman traversed the closed gate without hesitation, trespassed into Mr. Smith's yard, and was seen holding a silver-colored .22 caliber semi-automatic pistol while walking directly towards Mr. Smith's trailer. Mr. Chapman pulled back the slide ejector to chamber a round and ready the gun the for firing. and then loudly demanded that the defendant retrieve a shotgun from an unspecified location [Id., pages 68-69]. Mr. Chapman, whose postmortem toxicology report revealed was under the influence of both alcohol and a potentially lethal amount of methamphetamine, then invaded Mr. Smith's trailer, still brandishing the pistol, and stepped to the left towards the bed in the direction of Ms. Bigger and Mrs. Carter. Mr. Chapman pointed the firing-ready pistol directly at Ms. Bigger and loudly rambled on about the shotgun for a few minutes. [Ibid.]
The defendant, who was at that point unarmed and uniformed of the reason(s) for Mr. Chapman's arrival, complied with Mr. Chapman's demand to retrieve a shotgun from an unknown location and quickly entered the trailer with the shotgun. Immediately upon the defendant's entry, the defendant witnessed Mr. Chapman aiming the cocked gun directly at Ms. Bigger and also in the general direction of his wife, Mrs. Carter, sitting right next to her. The record reflects that Mr. Carter did not immediately fire the shotgun, but waited for a reaction from Mr. Chapman. Mr. Chapman fully turned to face Mr. Carter, maintaining his aim of the .22 caliber semi-automatic pistol, with round in chamber and hammer cocked, but now with Mr. Carter squarely in its sight. The barrel to barrel lethal force confrontation between social guest and home invader lasted only three to five seconds, with nervous utterings from both men, and then Mr. Carter, his host having abandoned him, and still facing the barrel of a loaded gun, chose to fire first. [Id., page70, lines 1-4].
Mr. Chapman died from the singular shotgun round fired by Mr. Carter. Mr. Carter then put the shotgun down. There is only speculation in the transcript as to what happened to the shotgun after Mr. Carter fired it.
A. THE DEFENDANT HAS BEEN ILLEGALLY HELD TO ANSWER FOR THE VIOLATION OF PENAL CODE §187(a) DUE TO THE LACK OF ANY COMPETENT, ADMISSIBLE EVIDENCE PRESENTED AT THE PRELIMINARY HEARING ON THE ELEMENT OF MALICE.
A motion to dismiss may be filed in the trial court under Penal Code §995 to dismiss an information on the grounds 1) there was insufficient evidence to hold the defendant to answer, or 2) when the record reflects that the defendant was denied a substantial right at the preliminary hearing. The court's review of the motion is limited to evidence which is contained in the transcript of the preliminary hearing. [People v. Crudgington, 88 Cal. App 3d. 295, 299 (4th Dist. 1979)]. An accused may be held to answer if the evidence presented provides probable cause to believe that the accused committed the crime, that is, that a man of ordinary caution or prudence would be lead to believe and conscientiously entertain a strong suspicion o the guilt of the accused. [Rideout v. Superior Court of Santa Clara County, 67 Cal 2d. 471,474 (1967)] The reviewing judge may not substitute its judgment for the weight or credibility of the evidence and any findings of fact by the magistrate are binding; however, the reviewing judge may disregard inferences that “derive their substance from guesswork, speculation, or conjecture.” [Birt v. Superior Court, 34 Cal. App. 3d. 934, 938 (3d Dist. 1973)].
In the instant matter, no witness testified regarding the existence of malice aforethought, an essential element of a Penal Code §187(a) violation, which distinguishes it from a violation of Penal Code §192(a) [Voluntary Manslaughter]. In fact, testimony at the preliminary examination, transcript demonstrates that the defendant had no knowledge that Mr. Chapman would be present at Mr. Smith's residence that evening before Mr. Chapman's communications, and that Mr. Carter was only seen with a weapon of any sort just three to five seconds before the lethal shot was fired. There was no evidence regarding motive and no other circumstances that would imply malice aforethought. Thus, the preliminary hearing transcript only supports the theory of a sudden quarrel or provocation. Thus, the defendant should not have been held to answer as to the violation of Penal Code §187(a).
B. THE DEFENDANT HAS BEEN ILLEGALLY HELD TO ANSWER FOR THE VIOLATION OF PENAL CODE § 29800(a)) DUE TO THE TOTAL LACK OF EVIDENCE REGARDING THE DEFENDANT'S STATUS AS A PERSON PROHIBITED FROM POSSESSING A FIREARM.
There must be some evidence to support each element of the charged offense. [Garabedian v. Superior Court of City and County of San Francisco, 59 Cal. App. 2D 124 (1963); Barber v. Superior Court, 1 Cal. App 4th 793, 795 (3d Dist. 1991)]. The charge must be supported by admissible evidence. If inadmissible evidence was received over objection, the reviewing judge must disregard it and weigh the sufficiency of the evidence by what remains. [Whitman v. Superior Court, 54 Cal. 3D 1063, 1068 ((1991)]. Remand to correct a minor error is permissible only when the evidence in the record at the time of the remand order provides most, if not all the evidence necessary to hold the defendant to answer for the charged offense and does not involve a substantial rehearing of evidence, but only limited questions and answers. [Garcia v. Superior Court, 177 Cal. App. 4Th 803 (6th Dist. 2009)].
In the present matter, the preliminary examination transcript contains neither testimony nor documentation that the defendant is a convicted felon. Status as a felon is a key element of the offense, as to which no evidence was presented. Similarly, in People v. Meza, 189 Cal. App. 4Th 468 (2d Dist. 2011), the total absence of evidence that a police officer was acting lawfully in a case of resisting an officer was not deemed a “minor error of omission”).
C. THE DEFENDANT WAS DENIED THE SUBSTANTIAL RIGHT OF DUE PROCESS AT THE PRELIMINARY HEARING AS TO ALLEGED VIOLATION OF PENAL CODE § 29800(a).
The prosecution may file an information alleging offenses other than those charged in the complaint if those offenses arise out of the same transaction as the offenses for which the magistrate committed the defendant and are supported by the evidence presented at the preliminary hearing. [People v. McGee, 31 Cal. 2d.229, 239 (1947]; Jones v. Superior Court, 4 Cal. 3d. 660, 664-665 (1971)]. However, where the defendant could not have “reasonably anticipated the new crime charged in the information and would have conducted the preliminary hearing differently had he known the prosecution contemplated such charge, the defendant is denied a substantial right at the preliminary hearing and the new charge in the information will be dismissed. [People v. Manning, 133 Cal. App. 3D 159, 168 (5th Dist. 1982); People v. Brice, 130 Cal. App. 3D 201, 207 (1st Dist. 1982)].
As mentioned, the original Complaint consisted of two counts, with Count 2 alleging a violation of Penal Code 451(b). This allegation was so speculative that it was dismissed for lack of probable cause at the preliminary examination. However, it was a serious enough felony allegation to warrant substantial investigation and preparation before the preliminary examination and a substantial dedication of cross-examination time during the preliminary examination. The combination of charging the defendant with a very speculative, but serious felony which was then dismissed for lack of probable cause, and then adding a new felony charge after the preliminary hearing, creates circumstances ripe for the denial of a substantial right at the preliminary hearing. In these circumstances it is almost given that the defendant could not have anticipated the additional charge and would have most certainly conducted the preliminary hearing differently.
The defendant facing 25 to life for the Count 1, and a serious felony in the original count two would not have anticipated the addition of any more charges due to the gravity of the original two counts, and, in fact, could not have anticipated the new County 2 because no physical nor photographic evidence of a firearm that may have been in the possession of the defendant was presented at the preliminary hearing, nor was there testimony that such evidence had been collected by witnesses for the prosecution. Furthermore, the defendant could not have anticipated the newly added charge because the circumstances of the homicide indicate that a) the defendant or others were in imminent peril of great bodily harm, b) that without preconceived design on his part the defendant a firearm is made available to the defendant, c) that his temporary possession was for no longer a period than was necessary to defend himself or others, and d) that no other means of avoiding the danger was available. Under these circumstances, the an individual, even a convicted felon, is entitled t defend himself or others, with a firearm. [People v. King, 22 Cal. 3D 12 (1978)] This necessity defense and the law supporting it rendered any anticipation of a Penal Code §29800 charge moot from the defendant's perspective, as the defendant anticipated that a jury would either 1) acquit him of the murder charge based on self-defense, in which case he would not be liable for using a firearm per People v. King,supra, or 2) convict him or murder, in which case a charge under Penal Code §29800 would be relatively trivial, as a one-third the mid-term sentence derived from a 16, 2, or 3 sentencing spread (which is only 8 months) would be tacked on to a 25 to life sentence. Therefore, the defendant could not have anticipated the new PC§29800 charge.
Furthermore, the defendant would with certainty have conducted the preliminary hearing in a very different manner. if the newly added Count 2 had originally been charged instead of the Penal Code §451(b) allegation, then the defendant would have specifically subpoenaed Mrs. Melinda Carter and, possibly Mr. Smith, to testify as to the location(s), ownership, and actual or constructive possession of the retrieved shotgun both before and after the homicide. Moreover, the defendant would have focused pre-hearing investigation on discernment of those contested facts. Instead, the preliminary hearing transcript dedicates substantial time to the arson charge, but contains only cursory questioning regarding the location, ownership, and possession of the firearm before homicide, and mere speculation regarding the shotgun's disposition after the homicide.
WHEREFORE, the defendant, Benjamin Jasper Carter, prays that the reviewing Court set aside the information in its entirety, as the preliminary examination transcript is totally lacking in competent,
admissible evidence related to key elements of the crimes charged in Counts 1 and 2, and a substantial
right has been violated by the addition of a new charge after the preliminary hearing.
MICHAEL P. ACOSTA, ESQ.
. The preliminary examination transcript does not reflect that an invitation or license to enter Mr. Smith's real property and/or dwelling was extended to Mr. Chapman by Mr. Smith nor anyone present at his residence.
The preliminary examination transcript does not reflect the presence of or any communication from Mr. Smith until after Mr, Chapman was shot.