1

Filed 3/9/16 P. v. Young CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Appellant,

v.

JOSEPH YOUNG,

Defendant and Respondent.

 A146206

 (San Francisco County

 Super. Ct. No. 223052)

The People have appealed the trial court’s order dismissing a charge of murder 

from a criminal information. The appeal raises two issues: Can a trial judge reconsider 

his own order denying a motion to dismiss an information pursuant to Penal Code section 

9951 when the judge acknowledges that when he initially ruled on the section 995 

motion, he had not reviewed the video evidence that is essential to determining whether 

there is probable cause to hold a defendant to answer? And if such reconsideration is 

proper, did the trial judge then err in concluding (as did the magistrate who heard the 

preliminary hearing) that there was insufficient cause to hold the defendant to answer to 

the murder charge? 

This matter first came to our attention as a petition for writ of mandate and 

application for stay filed by the People because defendant Joseph Young’s trial on the 

remaining counts of the information was then scheduled for September 18, 2015. We 

issued a temporary stay of the trial to allow further briefing. After reviewing the briefing, 

 

1 All further undesignated statutory references are to the Penal Code.
2

we declined to resolve the matter by writ and denied the writ, but expedited the People’s 

appeal of the identical issues, which had already been fully briefed.

2

 We now hold that 

the trial judge did not err in reconsidering his own order denying the section 995 motion

when it became apparent to him that he had made a ruling without actually having

reviewed key evidence, and that he did not err when, upon reconsideration, he dismissed

the murder charge against defendant Young. 

FACTUAL AND PROCEDURAL BACKGROUND

This appeal arises out of an incident in the early morning hours of July 22, 2014,

at the Henry Hotel in San Francisco. The San Francisco District Attorney filed a 

consolidated felony complaint charging defendant Joseph Young and codefendant Darius 

York (not a party to this appeal) with, among other charges, the murder and assault of 

Daniel Beltran, and the assault of Roger Alarcon. York was alleged to be the shooter.3

 

2

The trial court’s order dismissing the murder charge is an appealable order. 

(§ 1238, subd. (a)(1).) In our order denying the writ, we stated that the writ petition, and 

briefs received in connection with the writ petition, would be treated as the briefs on 

appeal, and that the record already submitted would be treated as the record on appeal, 

subject to any supplementation by the parties. 

3

The complete list of charges against Young at the time of the preliminary hearing 

were count 1, murder of Beltran; count 2, assault with force likely to cause great bodily 

injury against Beltran; count 3, assault with a deadly weapon, not a firearm, against 

Alarcon; count 4, assault with a semiautomatic firearm against Alarcon; count 5, assault 

with force likely to cause great bodily injury against Alarcon; count 8, maintenance of a 

place for selling or using a controlled substance; count 9, utilizing a fortified house in 

violation of Health and Safety Code section 11366.6; and count 11, attempted destroying 

evidence. As to the murder count, it was alleged that York (not Young) personally and 

intentionally discharged a firearm, to wit, a semiautomatic handgun, in violation of 

section 12022.53, subdivision (d). As to Young, it was alleged that he was armed with a 

firearm pursuant to section 12022, subdivision (a)(1). There was no evidence of any 

other firearm except the semiautomatic handgun that York was held to have discharged 

and which formed the basis for the original holding order of murder as to York.

The complaint also alleged enhancements and prior felony convictions that are not 

relevant here.
3

Preliminary Hearing

Judge Jerome Benson, a very experienced retired superior court judge, presided 

over the preliminary hearing, which lasted over the course of three days. The key piece 

of evidence at the preliminary hearing was video footage from the Henry Hotel taken on 

the morning of the incident, from around 4:30 a.m. until approximately 6:30 a.m. It was 

stipulated for purposes of the preliminary hearing that the video clips from the various 

surveillance cameras in and around the Henry Hotel were business records under 

Evidence Code section 1270, and that the court could view them without further 

foundation as evidence at the preliminary hearing. A substantial portion of the 

preliminary hearing consisted of showing the video evidence, which was primarily shown 

in connection with the testimony of Jon Kasper, a sergeant in the San Francisco Police 

Department, who is assigned to the homicide detail. Kasper was familiar with the lay-out 

of the Henry Hotel, and had reviewed and was familiar with the videos. Kasper

identified the individuals in the video (including Young, York, the alleged victims and 

others), and from time to time provided a narration that was essential to understanding 

what was being shown on the screen. The video evidence was played painstakingly, with 

the same events sometimes shown from different angles taken by different cameras in 

and outside the hotel. The video clips were also shown in connection with the testimony 

of the People’s other witness, Gary Owens, the Henry Hotel desk clerk the morning of 

the incident, who was an eyewitness to the events. Owens testified under a grant of 

immunity. We summarize the evidence that pertains to the murder charge that is at issue 

here.4

The video clips showed two individuals, identified as Beltran and Alarcon, who 

were attempting to gain entrance to a hotel room upstairs in the Henry Hotel. They first 

had to get inside the locked and gated inner lobby of the Henry Hotel. That is where the 

 

4

The section 995 motion also urged that Young not be held to answer on any of 

the other charges against him relating to alleged victim Beltran, as well as the two assault 

charges against alleged victim Alarcon. This part of the motion was denied, but it is not 

before us on the People’s appeal. We consider only the murder charge.
4

trouble started. The Henry Hotel was frequently used for illegal drug transactions, and it 

was hotel policy that anyone seeking entrance to the hotel between the hours of 8:00 p.m. 

and 9:00 a.m. had to pay $10 and show identification. Owens was the desk clerk at the 

Henry Hotel on the morning in question, and he was sitting in the desk clerk’s office 

when the events started to unfold. When Owens told Beltran and Alarcon that each

would have to pay $10 and show him their identification to gain entry to an upstairs 

room, per hotel policy, they balked. Angry arguments ensued between Beltran and 

Alarcon, on the one hand, and Owens. According to Owens, Beltran (referring to Owens)

said things like, “ ‘[f]uck that nigger . . . I’m not paying shit’ ” and “ ‘you need to call the 

fucking police, then, because I’m not giving you shit but an ass kicking.’ ”

5

 Beltran was 

drunk and combative; according to statements later made by Beltran’s uncle to Sergeant

Kasper, Beltran had already been drinking heavily on the morning of the incident.

6

Defendant Young worked as a desk clerk and security guard at the hotel, although 

he was not on duty at the time Beltran and Alarcon arrived. Young lived at the hotel, not 

as a guest but because he worked there; according to Owens, Young lived somewhere on 

the third floor. York was living at the hotel, too, in anticipation of being hired as a 

security guard. Owens, York and Young were personally close. Owens said York and 

defendant were like brothers; he had known them both since they were young and they 

referred to him as “uncle.” 

The Henry Hotel is on Sixth Street. To get into the hotel from the sidewalk, there 

is a door and an iron gate, which lead into the outer hotel lobby. To get into the inner 

lobby, there is another locked iron gate. A person who wishes to gain access to the inner 

lobby of the hotel (and upstairs into the hotel) must be “buzzed in” through this second

iron gate. At the back of the inner lobby is a stairwell and an elevator. A person in the 

 

5 Owens attributed these statements to “the shorter guy” or the “little bitty guy,” 

who was identified on the video as Beltran. He identified Alarcon as the taller person 

with the fisherman’s hat. 

6

It was stipulated for purposes of the preliminary hearing that Alarcon and Beltran 

were under the influence of intoxicating substances, either alcohol and/or other controlled 

substances, at the time of the events at issue in the case. 
5

outer lobby can see people coming out of the elevator or coming down the stairs. The

desk clerk’s office has a glass window that looks out on the outer lobby. The desk clerk’s 

office has an array of security monitors that display camera views of the hotel, including 

the interior of the elevator. 

The evidence of what happened on the morning in question is primarily based on 

the soundless videos, which were taken from cameras placed in the interior lobby area of 

the hotel, the elevator, the seventh floor area, and the outside of the hotel itself; Owens’s 

immunized testimony; and the testimony of Sergeant Kasper.

Beltran and Alarcon came to the Henry Hotel together; it was later discovered that 

they were there to buy cocaine.7They argued with Owens about getting access to the 

hotel. The argument got heated, with physical threats against Owens and racial slurs.8 

According to Owens, Beltran said he was “the Mexican Mafia and that I would be sorry 

if I take this any farther, because he would have my ass.” At one point, Owens went back 

into the desk clerk’s office and feigned a call to the police. Owens saw on the security 

monitors that York was coming down the elevator. Owens walked over to the elevator to 

meet him. Owens gestured to Beltran and Alarcon, and told York that he was “having a 

problem with . . . these two guys here that won’t leave.” 

Video clips show that York immediately reentered the elevator, exited on the 

seventh floor, and went running into room 703. (This is the same room that, earlier that 

morning, York, defendant, and a woman identified as Dizon, were seen entering and 

 

7 At the request of York’s counsel and with the agreement of the prosecutor, it was 

stipulated that if Officer Vizcay of the San Francisco Police Department had been called 

as a witness, he would have testified to the contents of his police report, which the court 

was permitted to read and consider as evidence. The report stated in summary, according 

to Judge Benson, that on August 18, 2014 (shortly after this incident), Alarcon and a Mr. 

Roosevelt got into a dispute about a bag that was laying in the street and in the course of 

that, Roosevelt pushed Alarcon, who then lifted his shirt and brandished a black Glock 

that was in Alarcon’s waistband. Roosevelt later fled on foot and identified Alarcon. 

This incident was admitted as a character trait of the victim pursuant to Evidence Code 

section 1103. 

8 When Owens was asked whether Beltran and Alarcon threatened that “they’d 

fuck you up” and “said they’d kill you,” Owens answered “yes.” 
6

exiting.) Moments later, York ran out of room 703 carrying a gun with an extended 

magazine in his hand. Defendant and the woman named Dizon emerged running from 

room 703 about 15 seconds after York. Defendant was half dressed, and pulled on a 

sweatshirt as he moved down the hall toward the stairs. York went directly to the 

elevator, and took it back down to the first floor lobby area. Young ran down the stairs to 

the lobby. He got there before York did, spoke to Owens about what was going on, and 

began arguing with Beltran. According to Owens, Beltran continued to sound off, telling 

defendant, to “get the fuck out of my face.” 

York then arrived downstairs. As York walked out of the elevator, there was a

firearm with an extended magazine visible in his hand. Defendant turned and looked 

back toward the elevator as York was walking out of the elevator with the gun. 

Defendant and Beltran then physically engaged; defendant pushed Beltran out the door of 

the hotel and onto the sidewalk. While this was happening, York approached Alarcon 

and began throwing punches at him, with the gun visible in York’s hands. 

The situation was fluid and fast moving. In the midst of these physical struggles, 

York’s gun was discharged from inside the hotel and apparently through the iron gate in 

the outer hotel doorway, hitting Beltran in the upper chest. The video shows a flash, and, 

according to Owens, there was a loud sound in the lobby when the gun was fired. Just 

before he heard the loud noise, Owens heard Beltran asking Alarcon to come out of the 

building, saying “[f]uck these niggers, man. We’re gonna handle it,” and that they were 

“gonna show” them something “right now.” Alarcon did not hear a shot and did not 

realize that Beltran had been shot until later when they were out on the street. 

Beltran grabbed his chest and ran down 6th Street in the direction of Minna Street. 

Young, York, and a man named Ebony Holt (who was also involved in the altercation

and later charged) went some distance south toward Minna Street, and then turned around 

and went back into the lobby of the hotel, where they turned their attention to Alarcon. 

Defendant hit Alarcon, and Holt and York joined in; in Owens’ words they started “really 

whupping [Alarcon’s] ass.” Owens told his “nephews” (defendant and York) and Holt to 

stop, and eventually they did. Alarcon then ran out of the hotel lobby; according to 
7

Owens he was “still talking shit” and saying “ ‘[w]e’ll be back motherfuckers’ . . . 

[¶] [a]nd, ‘Y’all don’t know who you fucking with.’ ” Shortly thereafter, defendant and 

Owens used a mop and bucket to clean blood off the floor in the hotel lobby. And 

shortly after that, defendant, York and Dizon are seen on the video camera going back 

into room 703. 

Beltran made his way down the street near the area of the Henry Hotel where his 

uncle was waiting in a car for him and Alarcon. Beltran died from a gunshot wound to 

the chest. Alarcon had a bloody nose; he was uncooperative when he was later 

interviewed by the police and claimed not to remember the events accurately. He said he 

and Beltran were at the Henry Hotel to buy cocaine. 

Sergeant Kasper and other police officers arrived at the Henry Hotel at about 6:20 

a.m. that morning and began investigating. A shell casing was recovered in the outer 

lobby inside the Henry Hotel. Owens at first denied that anything had occurred.

Judge Benson considered the video evidence at the preliminary hearing, and asked 

to have excerpts replayed, sometimes in slow motion, or paused so that he could focus on 

the testimony or occasionally ask a question. The prosecutor used the video clips in his 

closing argument. Judge Benson also reviewed some of the video evidence before 

issuing his holding order. In all, 14 different video clips of varying duration were offered 

in evidence. 

At the end of the preliminary hearing, Judge Benson held Young to answer only 

on counts 4 and 5: assault with a semiautomatic firearm against Roger Alarcon (§ 245, 

subd. (b)), and assault with force likely to cause great bodily injury against Roger 

Alarcon (§ 245, subd. (a)(4)).9 The remaining charges against Young were all dismissed; 

 

9 During the prosecution’s closing argument at the preliminary hearing, which 

including replaying portions of the video, Judge Benson commented regarding the assault 

against Alarcon (count 5) that “I get the sense that—from looking at the video here that 

you’ve sort of severed that off as a separate assault because there’s an interruption with 

the shooting and people coming back inside, and then three people seem to go after Mr. 

Alarcon at that point. Is that what you’re thinking?” The district attorney replied, 

“That’s what Count V encapsulates, your Honor.” Judge Benson eventually stated in 
8

most importantly for this appeal, the count alleging that he was liable for the murder of 

Beltran. Judge Benson stated that his holdings as to Young were “evidence based, 

particularly on the specifics as shown in the video cameras that the—that recorded what 

was happening in this event at the gate. The . . . Court’s holdings in this regard or lack of 

holdings in this regard is based upon the Court’s inability to find probable cause.” Judge 

Benson explictly stated that he was not making any express or implied factual findings 

that would restrict the district attorney’s exercise of its discretion under section 739, that 

“the Court’s order to hold or discharge on any defendant on any charge is based on the 

Court’s legal conclusions regarding the presence or absence of probable cause,” and that 

his “findings as to probable cause are based on what I specifically saw in this film and the 

precise sequence of events.” 

York was held to answer on several counts, including the murder of Beltran and 

the arming allegation. 

The District Attorney Files an Information

On October 21, 2014, notwithstanding the holding order, the district attorney filed 

an information charging both Young and York with the murder of Daniel Beltran (§ 187, 

subd. (a); count 1); assault with force likely to cause great bodily injury against Beltran 

(§ 245, subd. (a)(4); count 2); assault with force likely to cause great bodily injury against 

Roger Alarcon (§ 245, subd. (a)(4); count 3), assault with a semiautomatic firearm 

against Beltran (§ 245, subd. (b); count 4); and assault with a semiautomatic firearm 

against Alarcon (§ 245, subd. (b); count 5). Young was arraigned on the information on 

October 22, 2014.10 

 

holding defendant Young to answer on the assault charges as to Alarcon (but not Beltran 

or the murder count) that “it seems pretty clear to the Court that Mr. Young knew about 

the gun and he was going along with its use in order to get these two characters out of the 

hotel, but I cannot make a finding as to probable cause—a probable cause finding as to 

Count I [murder]. It’s easy to do as to the assault charge, but not as far as the [section] 

187 [murder].”) 

10 Subsequently, Young and York’s case was consolidated with that of another 

defendant, Ebony Holt, and a consolidated information was filed on November 17, 2014. 
9

Defendant Files a Section 995 Motion Which Is Denied

On December 24, 2014, Young filed a motion to dismiss the consolidated 

information pursuant to section 995 on the ground that there was insufficient evidence to 

hold him to answer. Young contended, among other things, that the refiled murder 

charge against him must have been premised on an aiding and abetting theory, which he 

argued the prosecution had failed to establish. Young also argued that People v. Chun

(2009) 45 Cal.4th 1172 (Chun) supported dismissing the murder charge.

11

 

The district attorney opposed the section 995 motion, contending that the evidence 

was sufficient to show Young aided and abetted the murder of Beltran under the natural 

and probable consequences theory of liability. He disputed that Chun, which involved 

felony murder, had any applicability to this case. 

Judge Philip Moscone, another very experienced retired superior court judge,

heard the section 995 motion in a brief hearing held on the morning of January 30, 2015. 

Towards the end of the morning session, Judge Moscone indicated that he “did not have 

the opportunity to see the video, but the research attorney did.” No one commented in 

response to this statement by the court. The court took a recess for lunch, and the matter 

resumed that afternoon at 2:00 p.m. Judge Moscone commented that he “had a chance to 

look over the papers and portions of the transcript during the lunch hour,” and asked if 

there was “anything further anyone wants me to consider?” All three defense counsel 

said no. Young’s section 995 motion was denied, with little comment by Judge 

Moscone: “And I think that—the matter of merger that was discussed in the papers, that 

doesn’t arise at this time but it [m]ight arise at the time of discussion with the Court as far 

as instructions at that point, depending on what the People’s theory is. [¶] It could be 

refiled because it’s transactionally related, and you don’t always have to go on a felony 

 

Young waived instruction and arraignment on the consolidated information on November 

17, 2014. 

11 In Chun, the Supreme Court held that when the underlying felony is assaultive 

in nature, the felony merges with the homicide and cannot be the basis of a second degree 

felony-murder instruction. (Chun, supra, 45 Cal.4th at p. 1200.) 
10

murder basis. There’s a natural probable consequences of the assault, which I think is 

sufficient evidence to show.”

Defendant Files a Motion to Reconsider the Section 995 Motion

On May 13, 2015, Young filed a motion for reconsideration of his earlier section 

995 motion, “based on the general concept of due process and the fact that Judge 

Moscone ruled on defendant’s 995 motion without actually viewing the video evidence

introduced at the preliminary hearing which was central to the resolution of the issues 

raised in the defendant’s 995 motion.” The motion did not address why Young’s counsel

had not raised this point earlier, since it was apparently known at the time of the section 

995 hearing before Judge Moscone that he had not watched the video evidence. Defense 

counsel conceded without more that defendant was “time-barred from challenging the 

ruling of Judge Moscone by seeking a writ pursuant to Penal Code § 1510.” Section 

1510 permits review of the “denial of a motion made pursuant to Section 995 . . . prior to 

trial only if the motion was made by the defendant in the trial court not later than . . . 60 

days following defendant’s arraignment on the information . . . if a felony, unless within 

these time limits the defendant was unaware of the issue or had no opportunity to raise 

the issue.” Offering no explanation, defendant apparently conceded that the section 995 

motion had not been made within this time frame.12

The district attorney opposed the motion for reconsideration on the ground that it 

was “procedurally incorrect.” He argued that defendant should have filed a writ of 

prohibition to the Court of Appeal pursuant to section 999, subdivision (a) within 15 days 

of the unfavorable ruling on his section 995 motion, and having failed to do so should not 

be permitted to file a motion to reconsider. The district attorney also argued that the 

reviewing judge was not required to review all of the evidence in considering a section 

995 motion, and that having apparently found probable cause based on the transcript of 

the preliminary hearing alone, no further inquiry was needed. 

 

12 Defendant was arraigned on the information on October 22, 2014, and filed the 

section 995 motion on December 24, 2014; it was heard on January 30, 2015. 
11

Judge Moscone heard the motion to reconsider on June 12, 2015, and granted the 

motion. He indicated that he was “not sure whether I actually saw any of the video clips 

or whether I just as [sic]—you know, I was reading the testimony. I kind of have a 

mental image of what was going on.”13 Young’s defense counsel opined that Judge 

Moscone might have been thinking of an excerpt of video that was shown to him in 

connection with the subsequent change of plea of defendant Holt, who had been charged 

in connection with this incident.

In any event, while Judge Moscone acknowledged that it was “kind of a low 

standard” to determine in a section 995 motion whether there were grounds to show that 

an offense had been committed, he concluded that “given the importance of the case and 

nature of the charges, I probably should take another look at it with the videos.” He 

continued, “I’m not saying the decision is going to be any different from what it was 

before. . . . [¶] It’s just a question of—I don’t think I reviewed the things because they 

weren’t submitted at the time that I had the review. And so if we have them now, it’s the 

least I can do . . . [¶] is take a look at them.

Judge Moscone Reconsiders the Section 995 Motion

Judge Moscone subsequently conducted a very brief hearing on the merits of the

renewed section 995 motion on August 3, 2015. Neither counsel presented further 

argument at that time. Judge Moscone stated, “This was a motion to reconsider a prior 

ruling on a 995 motion based on the Court’s inability at that time to view the videos prior 

to the original hearing. [¶] So the matter was then submitted, and the Court did view the 

videos. And I also reviewed the reporter’s transcript of the preliminary hearing. 

[¶] Having reviewed that, the Court does not find sufficient evidence to find reasonable 

and probable cause to hold Mr. Young to answer to the charge alleged in Count 1, that is 

 

13 At a pretrial hearing 10 days earlier addressing the district attorney’s request for 

a continuance for time to respond to the motion for reconsideration, Judge Moscone 

appeared to acknowledge that he had not viewed the video at the time of the hearing on 

the original 995 motion. “We do not have video, and I didn’t have the video last time, 

which is why I indicated on the record that I hadn’t reviewed it.” 
12

a violation of Penal Code section 187.” The balance of the section 995 motion 

addressing the other charges in the information against Young was denied, without 

explanation. Judge Moscone thus let stand the remaining charges against defendant, 

which included assault with force likely to cause great bodily injury against Beltran and 

against Alarcon, and assault with a semiautomatic firearm against Beltran and against

Alarcon. 

The People then timely filed this appeal. 

DISCUSSION

I. The Trial Judge Did Not Err in Reconsidering His Earlier Order.

The Attorney General contends that Judge Moscone was without authority to 

reconsider his prior ruling on the section 995 motion, and the order must be reversed on 

this ground without ever reaching the merits of the section 995 motion. 

It is well established law that in criminal cases a trial court has the power to 

reconsider its own interim rulings, with few limits. (In re Alberto (2002) 102 

Cal.App.4th 421, 426; People v. Castello (1998) 65 Cal.App.4th 1242, 1246 (Castello).)

Notwithstanding, the Attorney General contends that Judge Moscone had no power to 

reconsider the section 995 motion here because it was not based on any “changed 

circumstances,” and because it was a “final order” not subject to reconsideration. 

The Attorney General relies primarily on In re Kowalski (1971) 21 Cal.App.3d 67 

(Kowalski), but that case is distinguishable. Kowalski was a writ proceeding where one 

judge in effect reconsidered the section 995 ruling of another judge and reached a 

different result. Defendant Kowalski had been charged with lewd and lascivious 

behavior with minors. The first judge (Low) denied a section 995 motion to dismiss the 

indictment. The case went to trial before a second judge (Fisher), who granted a motion 

for mistrial and then, “in substance, invited” Kowalski to renew his section 995 motion. 

(Id. at p. 69.) Judge Fisher then granted the section 995 motion and dismissed the case. 

For reasons not explained in the opinion, two days later the parties were before Judge 

Low again. Although defendant contended that the case had been dismissed by Judge 

Fisher, Judge Low disagreed, stating that Judge Fisher had acted in excess of jurisdiction 
13

in granting the section 995 motion, and the order of dismissal was void. Judge Low then 

set a new trial date and bail. Kowalski petitioned for a writ of habeas corpus on the 

ground that Judge Fisher had jurisdiction to grant the second section 995 motion and 

dismiss the case, and another judge on the same court (Low) couldn’t simply set that 

order aside. The Court of Appeal agreed, holding that Judge Fisher did not commit 

“jurisdictional error” in granting the section 995 motion, and his order was “ ‘binding’ ” 

and should have been followed until such time as it was overturned. (Id. at p. 71.) The 

court in Kowalski noted that the People were “not without a remedy;” they could have 

filed an appeal from Judge Fisher’s dismissal order pursuant to section 1238, subdivision

(a)(1), but failed to do so and let it become final. As such, because the case had been

dismissed by Judge Fisher, and Judge Low’s orders setting a new trial date and fixing bail 

were void, the writ of habeas corpus was granted.

Along the way to its holding, the Kowalski court cited a rule of civil procedure for 

the proposition that “[o]rdinarily, a motion under section 995 should not be renewed 

unless changed circumstances are shown which have a significant bearing on the question 

whether a defendant was indicted or committed without probable cause. (Cf. Code Civ. 

Proc., § 1008.) Such circumstances might exist, for example, if there were a substantial 

change in the law between the time of the first and second motions, which made 

inadmissible much of the testimony considered by the grand jury or magistrate.” The 

Kowalski court concluded that “[i]n this case, without any showing of changed 

circumstances, Judge Fisher considered the matters already ruled on by Judge Low and 

reached a different decision. This was an abuse of discretion and was error, but it was 

not a jurisdictional error.” (Kowalski, supra, 21 Cal.App.3d at pp. 70-71.)

Thus, Kowalski is distinguishable because it arose in the context of a situation 

where one judge reconsidered and in effect overruled a different judge’s order. That is 

not the case here, where Judge Moscone reconsidered his own order after he believed he 

had failed to consider the video evidence. Further, Kowalski’s statement that a section 

995 motion may be renewed ordinarily only if there are changed circumstances relied by 

analogy to Code of Civil Procedure section 1008, which governs motions for 
14

reconsideration in civil cases. As other courts have concluded, this is a thin reed on 

which to base a rule in a criminal case. 

In Castello, supra, 65 Cal.App.4th at page 1245, a trial court initially found true 

an allegation of a prior conviction, but in response to a later motion by defendant 

reconsidered its decision and reversed its finding. The People argued that Code of Civil 

Procedure section 1008 extended to criminal cases and the trial court did not have the 

power even to reconsider an interim ruling, also relying on Kowalski. The court in 

Castello rejected this argument, and because its reasoning is directly applicable to this 

case, we quote it extensively: “In general, to decide the proper rule of criminal procedure 

by reliance upon rules of civil procedure ‘would be to ignore the underlying rights of the 

presumption of innocence and proof beyond a reasonable doubt.’ (People v. Belton

(1979) 23 Cal.3d 516, 522.) Gonzales v. Superior Court (1935) 3 Cal.2d 260, 263–264, 

concluded that only those parts of the Code of Civil Procedure which are expressly made 

applicable to penal actions apply to criminal cases. As stated in Smith v. Superior Court

(1981) 115 Cal.App.3d 285, 291, ‘[t]he rationale [of Gonzales] should apply . . . to 

preclude operation of other Code of Civil Procedure sections . . ., such as section 1008’

since section 1008 is not so incorporated. (Accord, People v. Glimps (1979) 92 

Cal.App.3d 315, 325, fn. 6.)

“. . . [Kowalski, supra,] 21 Cal.App.3d 67, 70, reasoned that a motion under . . .

section 995 should not be renewed unless changed circumstances are shown, using [Code 

of Civil Procedure] section 1008 by analogy only. (See Cal. Style Manual (3d ed. 1986) 

§ 101, p. 69 [meaning of ‘cf.’].) The court in People v. Locklar (1978) 84 Cal.App.3d 

224, 230 relying on [Kowalski], did imply in dicta that section 1008 applied in a criminal 

case. However, this dicta, based on a misreading of [Kowalski] does not bind us. (See, 

e.g., Hart v. Burnett (1860) 15 Cal. 530, 598–599.) Moreover, these cases primarily 

concern the rule that one trial court judge may not reconsider and overrule a ruling of 

another judge. (See, e.g., Greene v. State Farm Fire & Casualty Co. (1990) 224 

Cal.App.3d 1583, 1588–1589.)
15

“The California Supreme Court has often recognized the ‘inherent powers of the 

court . . . to insure the orderly administration of justice.’ (Hays v. Superior Court (1940) 

16 Cal.2d 260, 264; see also Bank of America v. Superior Court (1942) 20 Cal.2d 697, 

702 [court has power to change interim rulings]; Millholen v. Riley (1930) 211 Cal. 29, 

33–34.) In criminal cases, the court has acknowledged ‘the inherent power of every court 

to develop rules of procedure aimed at facilitating the administration of criminal justice 

and promoting the orderly ascertainment of the truth.’ (Joe Z. v. Superior Court (1970) 3 

Cal.3d 797, 801–802; Powell v. Superior Court (1957) 48 Cal.2d 704, 708.) . . .

“A court’s inherent powers are wide. (See, e.g., Asbestos Claims Facility v. Berry 

& Berry (1990) 219 Cal.App.3d 9, 19–24, disapproved on other grounds in Kowis v. 

Howard (1992) 3 Cal.4th 888, 896–897; Cottle v. Superior Court (1992) 3 Cal.App.4th 

1367, 1377-1378.) They include authority to rehear or reconsider rulings: ‘[T]he power 

to grant rehearings is inherent,—is an essential ingredient of jurisdiction, and ends only 

with the loss of jurisdiction.’ (In re Jessup (1889) 81 Cal. 408, 468; accord, Metropolitan 

Water Dist. v. Adams (1942) 19 Cal.2d 463, 469.) ‘ “One of the powers which has 

always been recognized as inherent in courts, which are protected in their existence, their 

powers and jurisdiction by constitutional provisions, has been the right to control its order 

of business and to so conduct the same that the rights of all suitors before them may be 

safeguarded. This power has been recognized as judicial in its nature, and as being a 

necessary appendage to a court organized to enforce rights and redress wrongs.” ’

(Lorraine v. McComb (1934) 220 Cal. 753, 756, quoting Ringlander v. Star Co. (1904) 

98 App.Div. 101, 104, italics added.)

“Moreover, even if [Code of Civil Procedure] section 1008 were deemed 

applicable to a criminal case, that statute, by its express terms, governs only a litigant’s 

ability to renew a motion or advance an application, not the court’s inherent power to 

reconsider its own interim rulings. [Citations.]

“A court could not operate successfully under the requirement of infallibility in its 

interim rulings. Miscarriage of justice results where a court is unable to correct its own 

perceived legal errors, particularly in criminal cases where life, liberty, and public 
16

protection are at stake. Such a rule would be ‘ “ . . . a serious impediment to a fair and 

speedy disposition of causes. . . .” [Citations.]’ (De La Beckwith v. Superior Court

(1905) 146 Cal. 496, 500, quoting Richman v. Board of Supervisors of Muscatine County

(1889) 77 Iowa 513, 524.).” (Castello, supra, 65 Cal.App.4th at pp. 1246-1248, fn. 

omitted.)

The logic of Castello applies to this case. Judge Moscone came to perceive that he 

had made a legal error in not reviewing the critical videotape evidence essential to 

determining whether to hold Young to answer for murder. Neither Kowalski nor Code of

Civil Procedure section 1008 stands in the way of his discretion to reconsider his original 

ruling.

The Attorney General also argues that it was error to reconsider the section 995 

motion because it was a “final” not an “interim” order. This argument is plainly 

incorrect. 

“Generally speaking, courts may correct judicial error in the making of interim

orders or in limine rulings until pronouncement or entry of a judgment. [Citations.] On 

the other hand, judicial error in the making of a final order or judgment ‘may not be 

corrected except pursuant to statutory procedures’ or on the limited grounds available for 

a collateral attack.’ [Citations.]” (People v. DeLouize (2004) 32 Cal.4th 1223, 1231, fn. 

omitted (DeLouize).)

In DeLouize, our Supreme Court addressed whether in a criminal case a court is 

prohibited from reconsidering its order granting a new trial. The trial court had granted 

defendant’s motion for new trial on the ground that, based on a recently published Court 

of Appeal decision, the trial court had committed structural error in misinstructing the 

jury. The prosecution (after the time to appeal the order granting new trial had passed) 

then made a motion to reconsider the order granting new trial on the grounds that a 

second Court of Appeal decision had concluded that the jury instruction was valid, the 

Supreme Court had ordered depublication of the first Court of Appeal decision that had 

been the basis for the new trial order, and the Supreme Court had itself issued a decision 
17

stating that the jury instruction at issue was adequate. (DeLouize, supra, 32 Cal.4th at p. 

1227.)

The court in DeLouize held that an order granting a new trial is “not final in the 

sense of being a final resolution of the case or a final determination of the defendant’s 

guilt or innocence. On the contrary, an order granting a new trial ‘does not finally 

dispose of the matter.’ ” (DeLouize, supra, 32 Cal.4th at p. 1231.) Section 1180, in fact, 

states that it “ ‘places the parties in the same position as if no trial had been had.’ ” Thus, 

DeLouize concluded that the order granting new trial is an “interim order in the sense that 

it requires further proceedings before the case may be resolved and judgment may be 

pronounced.” (Id. at p. 1231.)

DeLouize explained that whether the order was appealable or not was not a bright 

line test of a final versus an interim order. “Although courts have sometimes used 

appealability as a test for distinguishing final orders from interim orders [citations], a 

better approach here, we think, is to analyze the issue in terms of the policies underlying 

the general concept of finality. Orders and judgments are deemed final in the superior 

court, and not subject to reconsideration by that court, to preserve confidence in the 

integrity of judicial procedures and to avoid the delays and inefficiencies associated with 

repeated examination and relitigation of the same facts and issues. [Citation.] The 

concept of finality ‘rests upon the sound policy of limiting litigation by preventing a party 

who has had one fair adversary hearing on an issue from again drawing it into 

controversy and subjecting the other party to further expense in its reexamination.” 

(DeLouize, supra, 32 Cal.4th at p. 1232.)

Thus, the court reasoned that even though the motion granting the order for new 

trial was appealable, new trials “substantially prolong criminal proceedings,” and 

“allowing trial courts some authority to reconsider and to vacate orders granting new 

trials may lead to earlier resolution of the matter and thereby promote the interests 

underlying judicial finality rules.” (DeLouize, supra, 32 Cal.4th at p. 1232.)

Whether this particular order denying a section 995 motion is interim or final is an 

easily answered question. When a defendant moves to dismiss an information under the 
18

circumstances of this case, “the question of his guilt or innocence is not before the court.” 

(People v. McKee (1968) 267 Cal.App.2d 509, 514.) The denial of a section 995 motion

decides no more than that there is “reasonable or probable cause to believe the defendant 

guilty of the offense charged,” with the result that the criminal information goes forward 

as charged. (Id. at p. 515.) Put another way, in the language of DeLouize, an order 

denying a section 995 motion is “an interim order in the sense that it requires further 

proceedings before the case may be resolved and judgment may be pronounced.” 

(DeLouize, supra, 32 Cal.4th at p. 1231.)

Although the Attorney General acknowledges that whether an order is appealable 

is not determinative as to whether it is final or interim for purposes of reconsideration by 

a trial court, she nonetheless urges that we take into account that there is a statutory 

provision permitting pretrial review of the denial of section 995 motions and defendant 

did not avail himself of it in this case. She concludes that allowing defendant to move for 

reconsideration rather than timely filing a motion for pretrial review pursuant to section 

1510 makes the limitations of section 1510 “superfluous” and only encourages repetitive 

litigation in the trial court. 

When that argument is unpacked, it is unpersuasive. There is no clear statutory 

time period in which to file a section 995 motion; section 997 states it must be heard 

“prior to trial.”14 If a defendant makes a section 995 motion within the statutory time 

period provided by section 1510, he leaves open the possibility of seeking pretrial 

appellate review of an unfavorable denial of a section 995 motion. The avenue that is 

available is a writ of prohibition, pursuant to section 999a, which itself must be filed 

within 15 days after the section 995 motion is denied. (§ 999a; 4 Witkin, Cal. Criminal 

Law (4th ed. 2015) Pretrial Proceedings, § 271, p. 538 [defendant may seek prompt 

 

14 The timeliness of defendant’s original section 995 motion is not an issue in this 

case, and thus we need not and do not consider the circumstances under which a section 

995 motion might be considered untimely. (See, e.g., People v. Arjon (2004) 119 

Cal.App.4th 185, 190-191 [under the facts of this case, not an abuse of discretion to 

refuse to consider section 995 motion immediately before trial].)
19

review of order denying section 995 motion].) If a defendant makes a section 995 motion 

after the time period provided by section 1510, he may not seek pretrial appellate review 

of the denial of a section 995 motion. But that does not mean that a defendant is 

precluded from making the section 995 motion to begin with. (See Fleming v. Superior 

Court (2010) 191 Cal.App.4th 73, 103 [“ ‘[s]ection 1510 does not prevent a defendant in 

a felony prosecution from making a section 995 motion at any time before trial; it 

operates only to preclude pretrial appellate relief from an order denying one which (1)

was made more than 60 days after his arraignment and (2) does not fall within either of 

the exception for which section 1510 expressly provides’ ”], citing Ghent v. Superior 

Court (1979) 90 Cal.App.3d 944, 950-951.)

For whatever reason, defendant Young apparently made his original section 995 

motion after the time when he could avail himself of pretrial appellate review of an 

unfavorable decision.

15

 But he made the section 995 motion well in advance of trial and 

the prosecution did not challenge its timeliness. 

The Attorney General is incorrect that the course defendant Young followed made 

section 1510 “superfluous,” as if that characterization has some relevance to the outcome 

of this appeal. True, because of the timing of his initial section 995 motion defendant

cannot avail himself of pretrial review pursuant section 1510, but that is neither here nor 

there for purposes of answering the question whether Judge Moscone could decide to 

reconsider his prior ruling on the section 995 motion. Thus we conclude that the

Attorney General’s argument that defendant’s “failure to fully avail himself of his 

statutory remedy does not allow him a different remedy—reconsideration—that the court 

has no authority to provide” is without merit. 

But let us not lose sight of the big picture in this unusual case. In ruling on the 

section 995 motion the first time, Judge Moscone did not view the key evidence in the 

 

15 We describe the pretrial review scheme only by way of background to address 

the Attorney General’s arguments. We emphasize that we do not know why defendant 

filed the initial section 995 motion when he did, and whether he could have found a basis 

for pretrial review is not in the record—or an issue—before us. 
20

case. It did not take much to persuade him that he should reconsider the motion, even 

though he wasn’t convinced that it would change the outcome of his decision. Judge 

Moscone’s conscientious acknowledgment that he needed to review the tape is what 

“preserve[s] confidence in the integrity of judicial procedures.” (DeLouize, supra, 32 

Cal.4th at p. 1232.) On the facts of this case, we cannot say that he had no authority to 

reconsider his prior ruling.

II. The Trial Judge Did Not Err When, Upon Reconsideration, He Granted

the Section 995 Motion to Dismiss the Murder Count

A. Standard of Review

At the conclusion of the preliminary hearing, Judge Benson dismissed count 1, the 

murder count, for insufficient evidence. Judge Benson made no factual findings with 

regard to the charges. The district attorney then realleged the murder count, as he was

authorized to do pursuant to section 739, which permitted him to include in the 

information “either the offense or offenses named in the order of commitment or any 

offense or offenses shown by the evidence taken before the magistrate to have been 

committed.”

Section 995 requires an information to be set aside if the defendant “had been 

committed without reasonable or probable cause.” (§ 995, subd. (a)(2)(B).) 

“ ‘ “ ‘Reasonable or probable cause’ means such a state of facts as would lead a [person] 

of ordinary caution or prudence to believe, and conscientiously entertain a strong 

suspicion of the guilt of the accused.” [Citation.]’ ” (People v. Mower (2002) 28 Cal.4th 

457, 473.) In reviewing the trial court’s ruling on a section 995 motion, we directly 

review the determination of the magistrate. (See People v. Barba (2012) 211 

Cal.App.4th 214, 227-288.)

Where, as here, a district attorney files an information in the superior court after 

preliminary hearing with an offense that was not included in the commitment order 

signed by the magistrate, “the court must uphold the information if the evidence adduced 

at the preliminary hearing is sufficient to support the new or additional charge. 

[Citation.]” (People v. McKee, supra, 267 Cal.App.2d at p. 514.) “ ‘Thus, when section 
21

739 and . . . section 995 are read conjointly, it follows that the superior court is likewise 

not bound by the view of the committing magistrate; it too should uphold the information 

as to any offense charged in the information of which any reasonable construction of the 

evidence adduced at the preliminary hearing admits. In other words, if the defendant 

moves to dismiss the information under these circumstances, the question of his guilt or 

innocence is not before the court nor does the issue concern the quantum of evidence 

necessary to sustain a judgment of conviction. On the contrary, the court should decide 

from the evidence adduced at the preliminary hearing, without attempting to reconcile 

conflicts or judge the credibility of the witnesses, whether there is reasonable or probable 

cause to believe the defendant guilty of the offense charged. And, there is sufficient 

evidence to require the superior court to deny defendant's motion if it raises a clear and 

distinct inference of the existence of the essential elements of the crime charged

[citation].’ [Citation.]” (People v. Barba, supra, 211 Cal.App.4th at p. 227-228, quoting

People v. McKee, supra, 267 Cal.App.2d at pp. 514-515, fns. omitted.)

B. Aider and Abettor Liability

Young was charged with murder, apparently on the theory that he aided and 

abetted York’s assault with a firearm, and that the murder of Beltran was a natural and 

probable consequence of the assault. The evidence is undisputed that Young was not the 

shooter.

While “[t]he actual perpetrator must have whatever mental state is required for 

each crime charged,” the requirement for an aider and abettor is to “ ‘act with knowledge 

of the criminal purpose of the perpetrator and with an intent or purpose either of 

committing, or of encouraging or facilitating commission of, the offense.’ (People v. 

Beeman (1984) 35 Cal.3d 547, 560 [(Beeman)].)’ ” (People v. Mendoza (1998) 18

Cal.4th 1114, 1123 (Mendoza).)

Once the necessary mental state is established, “ ‘a defendant whose liability is 

predicated on his status as an aider and abettor need not have intended to encourage or 

facilitate the particular offense ultimately committed by the perpetrator. His knowledge 

that an act which is criminal was intended, and his action taken with the intent that the act 
22

be encouraged or facilitated, are sufficient to impose liability on him for any reasonably 

foreseeable offense committed as a consequence by the perpetrator.’ ” (People v. 

Prettyman (1996) 14 Cal.4th 248, 261 (Prettyman), quoting People v. Croy (1985) 41 

Cal.3d 1, 12, fn. 5.) “[T]he natural and probable consequences doctrine ‘allows an aider 

and abettor to be convicted of murder, without malice, even where the target offense is 

not an inherently dangerous felony.’ ” (People v. Sanchez (2013) 221 Cal.App.4th 1012,

1026, quoting People v. Culuko (2000) 78 Cal.App.4th 307, 322.) As our Supreme Court 

noted in Prettyman, decisions involving the natural and probable consequences doctrine 

“commonly involved situations in which a defendant assisted or encouraged a 

confederate to commit an assault with a deadly weapon or with potentially deadly force, 

and the confederate not only assaulted but also murdered the victim.” (Prettyman, supra, 

14 Cal.4th at p. 262.) 

“[W]hen a particular aiding and abetting case triggers application of the ‘natural 

and probable consequences’ doctrine, the Beeman test applies, and the trier of fact must 

find that the defendant, acting with (1) knowledge of the unlawful purpose of the 

perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the 

commission of a predicate or target offense; (3) by act or advice aided, promoted, 

encouraged or instigated the commission of the target crime. But the trier of fact must 

also find that (4) the defendant’s confederate committed an offense other than the target 

crime; and (5) the offense committed by the confederate was a natural and probable 

consequence of the target crime that the defendant aided and abetted.” (Prettyman, 

supra, 14 Cal.4th at p. 262, fn. omitted.)

Whether murder is a natural and probable consequence of a target crime is an 

objective determination. “On the issue of foreseeability the ‘question is not whether the 

aider and abettor actually foresaw the . . . crime, but whether, judged objectively, it was 

reasonably foreseeable.’ ” (People v. Karapetyan (2006) 140 Cal.App.4th 1172, 1177, 

quoting Mendoza, supra, 18 Cal.4th at p. 1133.)
23

C. Analysis

We conclude that Judge Moscone did not err when, upon reconsideration of the 

section 995 motion, he dismissed the murder charge as to defendant Young. We note at 

the outset that the impression of the evidence that one gets from reading the prosecution’s 

opposition to the section 995 motion is, in several important respects, different from

watching the video excerpts.

This much is clear. On the morning in question, Owens was threatened by two 

men who refused to leave the hotel (Alarcon and Beltran) and was unable to handle them 

on his own. Owens told York that he was having problems with these two men. Owens 

does not remember what he told York, and doesn’t remember telling him to get a firearm 

or to get defendant Young. But Young’s “job” was as a clerk and “like a security guard.” 

Owens had “trained” him, and Young lived and worked at the Henry Hotel. There was 

no other witness who testified on this subject.

The video excerpts show that York immediately went upstairs to the seventh floor

and ran to the room on the seventh floor that defendant, York, and a woman had been 

seen entering earlier in the pre-dawn hours of that morning. We do not know what York 

said to defendant in room 703. York was only in the room for a matter of seven or eight 

seconds. But we can draw an inference that he said something to Young that conveyed 

urgency about something in the lobby because, well less than a minute later, defendant

Young left room 703 half dressed, pulling on a sweatshirt, and hurried downstairs to the 

lobby. We infer from their actions that defendant and York were reacting to something

Owens told York about what was going on in the lobby. But it is sheer speculation that 

defendant and York agreed in those split seconds on the seventh floor of the hotel that 

they were going to assault Beltran and Alarcon with a firearm, or even that defendant 

knew York left room 703 armed.

In the trial court, the prosecutor wrote in opposition to the original section 995 

motion that the “target or intended crime was an assault with a firearm; the non-target 

crime was the resulting foreseeable murder. It is abundantly clear from the video that 
24

Joseph Young provided a loaded handgun to York and rushed to join in on the assault.” 

(Emphasis added.) 

We have viewed all of the video excerpts (as did Judge Benson at the preliminary 

hearing, and as did Judge Moscone upon his reconsideration of the section 995 motion), 

and there is simply nothing remotely like this on the video. Young is never seen 

providing a handgun to York, loaded or not. Not surprisingly, the Attorney General has 

not pressed this argument on appeal. 

In the trial court, the prosecutor elaborated in written opposition to the original 

section 995 motion that “York entered Young’s room; inferentially a short conversation 

took place between Young and York, and what occurs after this provides the 

foreseeability. York is provided with the handgun by Young or he retrieves a large 

handgun with an extended magazine from Young’s room. In either instance, Young has 

the knowledge of the handgun and its intended purpose—to assault the individuals 

downstairs. How does one know this? Because both Young and York emerged moments 

later with a single purpose in mind—to bring a loaded gun with an extended clip to an 

argument. York ran out first, followed by a half-dressed Young who bounded down the 

stairs to confront the unruly victims.” The prosecutor wrote that when York came out of 

“Young’s room” he was carrying a gun “in plain sight.” Again, having viewed all of the 

video evidence (as did Judge Benson when he held the preliminary hearing), we can state 

that this misdescribes the video evidence.

York and Young “emerged” from the room separately. What video footage there 

is shows that York ran out of room 703 first, carrying a gun down at his side that was “in 

plain sight” to the surveillance cameras, but not at that point to defendant Young. York 

left room 703 alone, and went quickly down the hall and straight into the elevator. More 

than 15 seconds later defendant and Dizon came running out of room 703. The timing is 

important, because by this time, York (and the gun) were not in Young’s sight. When

Young got to the top of the stairs on the seventh floor, York was already in the elevator. 

Thus, from the time York was outside room 703 until the time York got off the elevator 

in the lobby, Young could not have seen the gun in York’s hand, or had any discussion 
25

with him as to what, if anything, each intended to do. We know this from video excerpts 

taken from two different surveillance cameras from two different perspectives on the 

seventh floor. No reasonable inference can be drawn to the contrary. Thus to the extent 

that the inference argued by the district attorney in opposition to the section 995 motion

is drawn from the evidence we have described thus far (i.e., that defendant Young and 

York “joined into an agreement to assault the victims with a firearm”), it is

unsupported.16

The supposed significance to be drawn from what happened on the seventh floor 

carried through the rest of the district attorney’s argument to the trial court in opposition 

to the section 995 motion. The district attorney argued that the “actions of Young in the 

lobby corroborate the inference that Young foresaw what was about to occur when he 

emerged from his hotel room rushing downstairs,” relying on the discredited arguments 

about the evidence that we have described above.

17 (Emphasis added.) 

The prosecution argued in opposition to the section 995 motion that defendant was 

“waiting for York to arrive with the gun before physically attacking [Beltran]. Both York 

and Young had like-minded intentions because the moment that York emerged from the 

elevator and Young looked over his shoulder to see York with the gun, Young began the 

assault with the handgun as not only an aider and abettor but also a principal. . . . Young 

starts the assault and York sees this and begins to assault Alarcon with the handgun.” 

 

16 The Attorney General also relies heavily on the assertion “[t]hat defendant knew 

York had a gun was demonstrated by the fact they came out of the room together while 

York was holding the gun in plain sight.” (Emphasis added.) For the reasons we have 

described above, the video evidence does not support drawing this inference.

17 What happened on the seventh floor of the hotel immediately before the incident 

was the essential basis for the opposition to the section 995 motion. In summing up the 

evidence in its opposition brief, the prosecutor described the “magistrate’s failure to hold 

Young responsible for furnishing the gun to York and then running to the lobby to join 

in on the assault” as “erroneous,” in light of the “low standard for a holding order.” 

These actions, according to the prosecution, were “sufficient from a probable cause 

standard to show circumstantially that Young knew that York intended to use the gun in 

the planned assault of the victims.” 
26

Again, this argument presumes that defendant Young already knew York had a 

gun. We conclude that it is not reasonable to infer from the evidence that Young

“waited” to embark on the agreed-upon physical attack until the gun arrived. Owens 

testified that when defendant Young arrived in the lobby, Owens told him what was 

going on, and asked him “if he could please let these two guys that was on the opposite 

side of the gate know that I am not lying to them about our policy at nighttime as far as 

visiting.” According to Owens, Young agreed; “ ‘[y]eah, sure, I’ll do that for you.’ ” 

Also according to Owens, Young “went outside the gate, right to the guys, and he started 

telling them . . . exactly what I told them” about the nighttime policy. Young met with a 

hostile response. One of them said to defendant Young “ ‘[m]an, get the fuck out of my 

face.’ ” According to Owens, this was “the bell” that “angered” Young, and he 

“immediately got into a fight with him.”18 The video excerpts show that defendant 

Young got to the lobby first and immediately verbally engaged with Alarcon and Beltran, 

while standing in the threshold of the partially opened interior lobby gate. Owens was 

there too, standing in the outside part of the lobby near Alarcon and Beltran. 

York arrived downstairs in the lobby by elevator about 10-12 seconds after Young 

had begun engaging with Alarcon and Beltran. At that moment, defendant Young 

glanced back over his shoulder for a split second looking toward the elevator. There is 

no sound on the video, and no apparent non-verbal communication between York and 

defendant Young. Nor was there any testimony from Owens as to whether either said 

anything to the other. As York left the elevator and approached the outer lobby with a 

gun, defendant Young moved from his position and pushed Beltran out of the way, out of 

the lobby and onto the sidewalk. Judge Benson aptly described this part of the video as 

looking like Young “forcibly ejected [Beltran] out onto the street.” Owens agreed in his 

 

18 Owens described his own anger and compared it to Young’s: “That was the 

bell, meaning that the dude immediately angered—angered Mr. Young when he said that, 

you know, because it’s like—it’s like with me, the same thing I tried to explain . . . with 

me. I was so angry, I wanted to jump on the dude calling me these niggers and—and 

what he could do. So that [Young] is a younger man, like he’s a younger man, and he 

immediately got into a fight with him.” 
27

preliminary hearing testimony that this was what Young was “trained to do in these kind 

of circumstances.”19 Judge Benson again aptly described the video excerpt of the 

seconds-long encounter between defendant and Beltran after York arrived as “a lot of 

swinging. I don’t know if Mr. Young connected much. I don’t think either of them laid a 

glove on each other. There’s a lot of shoving and swinging.”20

While defendant Young pushed Beltran out the door and onto the sidewalk, the

video evidence shows that York, with gun in hand, assaulted Alarcon inside the hotel

lobby. 

This was a fluid and very fast moving situation, and these video excerpts are 

snippets from different camera angles inside the lobby and outside the hotel. From

beginning to end the physical confrontation was only a few minutes. Because we give no 

credit to the prosecution’s unproven assertions that it was Young’s gun, that he gave it to 

York, and that it was in Young’s plain sight on the seventh floor, the evidence necessary

to hold Young to answer for the murder charge depends upon whether in Young’s split 

second glance backward to the elevator and what immediately thereafter transpired, a 

reasonable inference can be drawn that defendant and York agreed to criminally assault 

Beltran and Alarcon and that in the prosecutor’s words “it was foreseeable to Young that 

Beltran would be killed during the assault in which [Young] participated” based “on the 

theory that Young was an aider and abettor.” 

 

19 As we have described, Judge Benson paid close attention to the video evidence. 

This exchange occurred when Owens was testifying at the preliminary hearing and being 

asked questions about the video excerpts. While the video was stopped momentarily, 

Judge Benson asked Owens “[d]oes it appear to you that Mr. Young, at what we’ve just 

seen, forcibly ejected the shorter guy [Beltran] out onto the street?” To which Owens 

replied, “It seems like that,” and the court responded, “Thank you. I just wanted to make 

sure what I was looking at.” Defense counsel then followed up: “Is that what Mr. Young, 

in his capacity as being a security person at the Henry Hotel, is trained to do in these kind 

of circumstances?” Owens responded, “To remove someone out the building, yes. Yes.” 

20 Judge Benson did not hold defendant to answer on the assault charges against 

Beltran, but this issue is not before us on appeal. 
28

The Attorney General’s argument hinges on her contention that it is a reasonable 

inference that Young waited and did not physically touch the Beltran or Alarcon until he 

saw York coming down the elevator with the gun. In his respondent’s letter brief on 

appeal, defendant counters that this inference is contradicted by the video (Young

actually engaging Beltran and Alarcon at Owens’s request) and by Owens’s testimony

about the insulting words that angered and triggered Young, as we have described 

above.

21

 Although the Attorney General acknowledges in her reply brief on appeal that 

“[d]efendant extensively discusses the facts, gleaned from the video recordings, arguing a 

likelihood he was unaware of York’s possession of the firearm and lacked the intent to 

assault the victims,” she is dismissive that any of the evidence matters. “Defendant’s 

interpretation of the video recordings, and his assertion that he did not aid and abet 

York’s assault, is of no moment,” because Judge Moscone denied the section 995 motion 

on the assaults with a firearm. From this the Attorney General concludes that Judge 

Moscone must have found that defendant had “knowledge of York’s criminal purpose 

and had the intent to encourage or facilitat[e] York’s assault with a firearm,” and that “if 

there was sufficient probable cause to believe defendant aided and abetted to the assaults 

with a firearm, then there was equally sufficient probable cause to find defendant liable 

for murder as a natural and probable consequence of assault with a firearm.”22

The Attorney General cites no authority for why the unappealed-from portion of 

Judge Moscone’s order on the reconsidered section 995 motion has any relevance to this 

appeal. We believe there is none. This is a pre-trial appeal by the Attorney General as to 

one dismissed count; defendant has not (and could not have at this point) cross-appealed 

the remainder of Judge Moscone’s order denying his section 995 motion. Because the 

 

21 The prosecution did not shed any light on the timing issue by asking Owens this 

ambiguous follow-up question: “And when [defendant Young] immediately got into a 

fight, before he got into a fight did you see anybody else arrive in the lobby,” Owens 

answered “yes,” and identified York and Holt. (Emphasis added.)

22 We sent a focus letter to counsel before oral argument asking them to be 

prepared to address to what extent we should consider that defendant Young had been 

held to answer on counts 4 and 5 of the information. 
29

magistrate (Judge Benson) made no express factual findings when he did not hold 

defendant Young to answer on the murder charge, the district attorney was not bound by 

the view of the committing magistrate and exercised his discretion pursuant to section 

739 to include the murder charge in the information. (People v. Barba, supra, 211 

Cal.App.4th at p. 227.) On the district attorney’s appeal from the trial court’s order after 

a section 995 motion, our task is to “ ‘decide from the evidence adduced at the 

preliminary hearing, without attempting to reconcile conflicts or judge the credibility of 

the witnesses, whether there is reasonable or probable cause to believe the defendant 

guilty of the offense charged.’ ” (Id. at pp. 227-228, quoting People v. McKee, supra,

267 Cal.App.2d at p. 514, emphasis added).) And we do this for the only charge at issue 

before us, which is murder. It is not our task to analyze nor are we bound by Judge 

Moscone’s other rulings.23

The Attorney General’s disinclination to address the actual evidence presented at 

the preliminary hearing in this case—including the stark differences between what the 

video actually shows and how it was characterized in the section 995 motion, and the 

need to consider what inferences can be drawn from the evidence actually presented at 

the preliminary hearing—leaves a gap in the Attorney General’s analysis and ultimately 

in the evidence. Our review of the record is that the evidence presented at the 

preliminary hearing was not enough to hold defendant Young to answer to the murder 

charge. We express no opinion as to the remaining charges in the case.

Because of our conclusion, we do not address defendant’s argument that he 

should not be held to answer on the murder charge because of our Supreme Court’s 

decision in Chun, supra, 45 Cal.4th at page 1194.

 

23 Neither party contends that Judge Moscone made any factual findings. Further, 

the Attorney General agreed at oral argument that if this court were to affirm the order 

dismissing the murder count, we would not then proceed to consider whether, in light of 

our holding, there was probable cause to hold defendant Young to answer for the other 

counts of the information that are not before us on this appeal. It’s not our role in this 

appeal to reconcile our holding with Judge Moscone’s ruling on the balance of the section 

995 motion.
30

DISPOSITION

The trial court’s order dismissing the murder charge alleged in count 1 is affirmed. 

Upon this decision becoming final, our previous order to stay proceedings below is 

vacated.
31

_________________________

Miller, J.

We concur:

_________________________

Kline, P.J.

_________________________

Stewart, J.

A146206, People v. Young