State Of Louisiana VS Saul Gomez-Lopez AKA Enrique Urbano
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2012 KA 0661 STATE OF LOUISIANA I VERSUS SAUL GOMEZ LOPEZ J l K A ENRIQUE URBANO v J On Appeal from the 18th Judicial District Court Parish of Iberville Louisiana Docket No 187 Division D S1B Honorable William C Dupont 7udge Presiding Richard Ward r Attomeys for Appellant District Attorney State of Louisiana Elizabeth A Engolio Assistant District Attorney Plaquemine LA ason L Chatagnier Smith Baton Chatagnier Rouge LA Attorney for LLC Appellee Defendant Saul Gomez Lopez k a Enrique Urbano BEFORE PARRO HUGHES AND WELCH JJ udgment rendered NOV 1 4 2 PARRO J Defendant Saul Gomez a Enrique Urbano and two codefendants Lopez k were charged by bill of information with one count of unauthorized entry of a critical infrastructure a violation of LSA 14 S R 61 Defendant pled not guilty and filed a motion to quash and a motion for preliminary examination After a hearing on these motions the trial court sustained defendant smotion to quash the bill of information and found no probable cause to charge him with the offense The state now appeals assigning as error the trial court sustaining of defendant motion to quash and its s s finding of no probable cause at the preliminary examination For the following reasons we affirm the trial court sustaining of defendant motion to quash and pretermit s s discussion of its finding of no probable cause FACTS At the hearing on the preliminary examination the state elicited testimony alleging that defendant and his two codefendants are Mexican citizens who illegally entered the United States and purchased false identification documents in order to secure work They are alleged to have used these false identities on February 14 2011 to gain employment with a scaffolding company doing business at Shintech Louisiana LLC a plant that manufactures polyvinyl chloride products in Plaquemine Louisiana MOTION TO QUASH With respect to the defendant motion to quash the state argues that the trial s court erred in quashing the bill of information on the basis that it failed to cite su cient facts as to whether a crime had been charged The motion to quash is essentially a mechanism by which to raise pretrial pleas or defenses ithose matters which do not go to the merits of the charge State v e Beauchamp 510 So 22 25 La App lst Cir writ denied 512 So 1176 La 2d 2d The two codefendants are subjects of separate appeals also decided this date State v Jose Alejandro Hernandez a Robert Torres 12 W App 1 Cir 11 unpublished 7uarez k 0473 12 2 opinion and State v Marco Antonio Thomas a esus De Leon 12 La App ist Cir k 0470 12 2 11 3d So 2 1987 see LSA arts 531 It is treated much like an exception of no cause of P Cr C 34 action in a civil suit Beauchamp 510 So at 25 In considering a motion to quash 2d a court must accept as true the facts contained in the bill of information and in the bill of particulars and determine as a matter of law and from the face of the pleadings whether or not a crime has been charged While evidence may be adduced such may not include a defense on the merits The question of factual guilt or innocence of the offense charged is not raised by the motion to quash Id In general an appellate court reviews a trial court rulings under a deferential s standard with regard to factual and other trial determinations but the legal findings of a trial court are subject to a de novo standard of review See State v Hunt 09 1589 La 12 25 So 746 751 When a trial court makes findings of fact based on 09 1 3d the weight of the testimony and the credibility of the witnesses a reviewing court owes those findings great deference and may not overturn those findings unless there is no evidence to support those findings Id As discussed below the trial court quashed the bill of information in this case based strictly upon a legal finding Therefore we review this ruling under a de novo standard An accused shall be informed of the nature and cause of the accusation against him LSA art Const I 13 That requirement is implemented by LSA Part 464 Cr C which provides The indictment shall be a plain concise and definite written statement of the essential facts constituting the offense charged It shall state for each count the official or customary citation of the statute which the defendant is alleged to have violated Error in the citation or its omission shall not be ground for dismissal of the indictment or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice The place of the commission of the offense need not be alleged in the indictment unless the place of commission is essential to the offense LSA art 469 P Cr C In the instant case defendanYs biil of information charged him with committing the offense of unauthorized entry of a critical infrastructure by the intentional entry without authorization into any structure or onto any premises belonging to another that constitutes in whole or in part a 3 critical infrastructure that is completely enclosed by any type of sic chemical manufacturing facilities refineries electrical power generating facilities water intake structures and water treatment facilities natural gas transmission compressor stations LNG terminals and storage facilities and transportation facilities such as ports railroad switching yards and trucking terminals This language tracks closely but not exactly with the language of the unauthorized entry of a critical infrastructure statute See LSA 14 S A R 61 Defendant raised purely factual issues as grounds for his motion to quash alleging that he had no criminal motive in making entry into the Shintech plant and that his entry into the plant was not actually without authorization Thus technically s defendant memorandum in support of his motion to quash had arguments that are inappropriate for consideration in a motion to quash because they speak to defendanYs factual guilt or innocence However the trial court granted defendanYs motion to quash on legal grounds independently of the arguments set forth in this memorandum stating Secondly I read the Bill of Information okay and if you read it it says these three guys committed the offense of and then it cites the statute It cites no facts whatsoever which it should cite okay And therefore the Bill of Information does not cite facts sufficient enough to charge the crime The state now argues that defendant sbill of information was not deficient and if it was deficient the trial court should have allowed the state to amend the bill of information instead of quashing it outright In reviewing the bill of information filed against defendant we find that it is defective in at least two respects First the bill of information fails to allege that the structure allegedly entered by defendant was completely enclosed by any type of physical barrier See LSA 14 However this omission appears to be the S A R 61 result of a simple miswriting of the statutory elements and it does not rise to the level of a defect sufficient to render the bill of information invalid or insufficient See LSA P Cr C art 487 A Secondly and more importantly the bill of information fails to allege with any Z The trial court also found no probable cause to detain defendant for reasons similar to those raised in his memorandum supporting his motion to quash 4 degree of specificity the place where the alleged offense occurred Instead the bill of information simply cites the boilerplate language of LSA 14 and fails to clarify S R 61 what type of critical infrastructure defendant allegedly entered without authorization There is decidedly little jurisprudence addressing the issue of when the place of the commission of the offense is essential to the offense In State v Yanes 09 929 La App 5th Cir 4 40 So 245 250 the Fifth Circuit noted that a 10 27 3d defendanYs bill of information properly charged him with unauthorized entry of a place of business a violation of LSA 14 when it alleged that he made unauthorized S4 R 62 entry into Samuel Brown Pediatrics That court did not further discuss whether such a specific designation was necessary but it noted that the bill also plainly concisely and definitely state the essential facts constituting d the offense charged Id The Second Circuit has stated that tplace of the crime is necessary to charge an he offense such as burglary where the element of unauthorized entry into a structure or similar thing must be proved but t place of the crime is not an element of such he crimes as murder rape robbery State v Lee 465 So 806 809 La App 2nd 2d Cir writ denied 468 So 572 La 1985 2d In the instant case we find that the place of commission of defendant alleged s offense of unauthorized entry of a critical infrastructure was an essential fact that should have been included in the bill of information Without including in the bill of information the fact that defendant allegedly entered Shintech a chemical manufacturing facility the state would theoretically have the unfair ability at trial to prove that defendant entered any of the other enumerated types of critical infrastructures in order to prove his guilt This lack of specificity would impair s defendant ability to prepare a defense Thus we conclude that the trial court did not err in granting defendant motion to quash s However in its brief the state further argues that even if the location of the alleged unauthorized entry should be included in the bill of information it should be allowed to amend the bill of information to include this element When an indictment 5 i fails to conform to the requirements of Chapters 1 and 2 of Title XIII of the Code of Criminal Procedure which includes Article 469 reference to the place of commission of s an alleged offense the court maypermit the district attorney to amend the indictment to correct the defect See P Cr C LSA art 2 532 emphasis added Similarly efore bthe trial begins the court mayorder an indictment amended with respect to a defect of substance See LSA art 487 emphasis added The permissive P Cr C A may in these respective articles indicates that the trial court is under no obligation to allow amendment of a defective bill of information before ruling on the motion to quash This conclusion is underscored by the final provision of LSA art 538 P Cr C which ailows a trial court to order that a defendant be held in custody or that his bail be continued for a specified time pending the filing of a new indidment Therefore we disagree with the state argument that the trial court should be compelled to allow the s state to amend its defective bill of information under the circumstances of this case In sum we find that the trial court did not err in granting defendanYs motion to quash The bill of information failed to state with particularity the place of commission of the alleged offense Further the trial court was not required to allow the state to amend the bill of information before ruling on the motion to quash However we note that because jeopardy has not attached in this case the state is free to file a new bill of information setting forth all of the elements of the alleged offense provided it does so within the applicable time limits for institution of prosecution See LSA arts P Cr C 538 572 576 and 592 This assignment of error is without merit PRELIMINARY EXAMINATION The state also argues on appeal that the trial court erred in finding no probable cause after defendant preliminary examination hearing and in ordering that defendant s 3 The final provision of Article 538 applies when the trial court has quashed the previous indictment for a reason other than those enumerated in that article In contrast the trial court sha the defendant order discharged from custody or bail as to that charge when it sustains a motion to quash based on the ground that 1 the offense is not punishable under a valid statute 2 trial for the ofFense charged would constitute double jeopardy 3 the time limitation for the institution of prosecution or for the commencement of trial has expired or 4 the court has no jurisdiction of the offense charged See LSA Part 538 GCr 6 be released from his bond obligation Because we have concluded that the trial court did not err in granting defendanYs motion to quash we pretermit discussion of this assignment of error as it relates to the trial court finding of no probable cause at s s defendant preliminary examination hearing We note that the Second Circuit has acted similarly under comparable circumstances in State v Walker 37 La App 493 2nd Cir 8 853 So 746 751 writ granted 03 La 3 869 So 03 20 2d 2871 04 12 2d 802 order recalled 03 La 7 877 So 99 2871 04 2 2d However to the extent that this assignment of error is sufficient to raise a claim that the trial court should have ordered defendant to be held in custody or to have his bail continued until the filing of a new bill of information we would reject any such argument under LSA art 538 Under this article the propriety of such an order P Cr C is within the discretion of the trial cou t We note that the evidence presented at defendanYs preliminary examination indicated that defendant would still be subject to federal supervision pending deportation proceedings because of an immigration hold that would apply even in the event of his release from state custody Therefore we cannot conclude that the trial court abused its discretion in releasing defendant from his bond obligation even if the state elects to file a new bill of information However we reiterate that we make no determination with respect to the trial court determination s of no probable cause SUSTAINING OF MOTION TO QUASH AFFIRMED 7
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