Preliminary Hearing
Category > Preliminary Hearing
Updated 2/22/2024Sanchez’s restrictions on an expert’s use of hearsay evidence applies to preliminary hearings.A gang expert testified at the preliminary hearing. His testimony regarding the gang’s predicate offenses went to specific facts about the arrests, searches and investigations of those cases, and was based entirely on the police reports memorializing those events rather than his personal knowledge. As such, they were hearsay under People v. Sanchez (2016) 63 Cal.4th 665, and should not have been admitted. However, the error was harmless since there was other admissible evidence presented on the issue.id: 27100
Updated 2/7/2024Defendant’s limited waiver to extend the 60-day deadline to conduct a preliminary hearing by a specific amount of time was proper.A defendant has a right to a preliminary hearing within 60 days of arraignment. Defendant agreed to a limited waiver of that right, consenting to a new date that was 76 days after his arraignment. The prelim was not held by that date, and so defendant moved for dismissal under Penal Code section 859b. The prosecution argued there can be no limited waiver and so defendant’s waver was a general one allowing the prelim to be extended beyond the specified date. However, the limited waiver was valid, and the trial court erred in denying defendant’s motion to dismiss.id: 27168
Section 859 required that a preliminary hearing be held within 10 days after reinstatement of criminal proceedings unless the defendant entered a time waiver. Proceedings were suspended on the day set for defendant’s preliminary hearing. Proceedings were reinstated about six months later after his competence was restored. The court set a new date for the prelim approximately six weeks later but defendant objected and requested a hearing within 10 days under Penal Code section 859b. The trial court erred in denying his request and in later denying his motion to dismiss the case.id: 25474
The addition of a torture charge five months after the preliminary hearing unfairly surprised defendant and deprived him of substantial preliminary hearing rights.Defendant was initially charged with aggravated assault along with various enhancement allegations following a road rage incident. Five months after the preliminary hearing, the prosecutor filed an amended information adding torture and attempted murder counts. The addition of the torture charge unfairly surprised defendant and thus deprived him of substantial preliminary hearing rights. However, the attempted murder charge was not too remote for defense counsel to have reasonably anticipated it. The prosecution was prohibited from proceeding on the torture count.id: 20634
Defendant was deprived of competent counsel at his preliminary hearing where counsel had been suspended by the bar, but relief was unavailable where he waited until after his conviction to raise the issue.Defendant was deprived of the right to competent counsel at his preliminary hearing and arraignment where counsel was on a suspended status for not paying bar dues and for acts and omissions related to his law practice. Had he pursued relief in a timely manner he could have had the information set aside. However, relief was no longer available to him after he was tried and convicted in a trial that was unrelated to the defect.id: 24022
The corpus delicti rule’s limitation on the use of a defendant’s extrajudicial statements still applies at preliminary hearings. Although the defendant’s statements might have been introduced to determine whether they would be held to answer, such statements remained irrelevant until the corpus delicti rule was otherwise satisfied. id: 21835
The trial court erred by allowing the prosecutor to present revised testimony at the reopened preliminary hearing in order to fill an evidentiary vacuum concerning the gravamen of the offense.The trial court erred in granting the prosecutor’s request to reopen the preliminary hearing, pursuant to Penal Code section 995a, subd.(b)(1), for the purpose of permitting the court sitting as a magistrate, to hear new evidence before ruling on defendant’s motion to set aside count 3 of the information.id: 21131
The trial court prejudicially erred by allowing the jury to base its guilty verdict on an incident not disclosed at the preliminary hearing.The trial court erred by granting the prosecutor’s motion to amend the information allowing the defendant to be tried for an offense not shown by the evidence at the preliminary hearing.id: 20573
The corpus delicti rule applies to preliminary hearings. Defendant successfully moved to dismiss the conspiracy charge under Penal Code section 995 due to the lack of evidence of conspiracy other than his own admissions. Contrary to the prosecution's claim on appeal, the corpus delicti rule applies to preliminary hearings.id: 18931
Nothing in Proposition 8 suggests the corpus delicti rule was abrogated in the preliminary hearing context.The trial court erred in finding that the corpus delicti rule no longer applies to preliminary hearings following Proposition 8. Nothing in Proposition 8 or the case law supports that ruling.id: 18788
The information was dismissed for lack of good cause to continue the preliminary hearing where the delay was caused by the failure to transport defendant to court. Penal Code section 861 gives the accused a right to continuous preliminary hearing. Defendant waived that right and agreed to continue the hearing to a particular date. The assigned prosecutor was sick on the scheduled date and defendant was not transported from the jail. The hearing took place several days later and defendant was bound over. The information was dismissed because the delay in reconvening the preliminary hearing was caused by the failure to transport defendant to court and there was not good cause shown for the delay.id: 20383
Defendant’s due process rights to notice of the charges against him were violated by the prosecutor’s decision to go forward with charges not established at the preliminary hearing. Defendant was convicted of two lewd acts against a 15 year-old in violation of Penal Code section 288, subd.(c)(1). However, the magistrate refused to bind over these charges at the preliminary hearing due to the lack of evidence that they occurred before the victim’s 16th birthday. The charges were not refiled, and the prosecutor gave no notice to the defense that the intended to go forward on these charges. Instead, he argued these counts to the jury during closing argument, based on the victim’s trial testimony, and the jury convicted on both counts. However, the convictions were reversed as defendant’s due process rights were violated by the prosecutor’s decision to go forward with charges not established at the preliminary hearing.id: 20788
The magistrate violated defendant's Faretta rights by denying the request for self-representation where defendant announced he was ready to proceed alone.Defendant informed the court at the beginning of his preliminary hearing that he wanted to represent himself. That appellant expressed frustration with counsel was no reason to deny the request, and the law does not require a "compelling" reason. The request need only be timely and unequivocal. Timeliness was not a problem where defendant indicated he was prepared to proceed without counsel and did not require a continuance. Because Faretta error is structural in nature, defendant's commitment was unlawful and the information was set aside.id: 18864
Defendant was entitled to an OR release subject to reasonable conditions when his preliminary hearing was continued for good cause beyond the 10 day period.Defendant was entitled to be released on his own recognizance when the preliminary examination was continued for good cause beyond the 10 day period specified in Penal Code section 859b. However, the trial court's failure to grant him OR release pending the preliminary examination did not amount to the denial of a substantial right at the preliminary examination within the meaning of section 995 absent the evidence that the error reasonably might have affected the outcome of the hearing.id: 19095
Three year-old sex victim's statements could not be used at the preliminary hearing to prove the corpus delicti where there was no confession.Penal Code section 1228 allows testimony from a victim that would otherwise be inadmissible to be admitted in child sex crime cases, but solely for the purpose of establishing the corpus delicti. In the instant case the three year-old victim testified at the preliminary hearing that defendant molested her. However, section 1228 comes into play to prove the corpus delicti only if the People had a confe7ssion to introduce. While the officer testified that defendant confessed, a transcript of his statements to police showed he admitted touching the victim's vagina while bathing her but he had no lewd intent in doing so. This statement did not qualify as a confession. Therefore, section 1228 did not permit the otherwise incompetent statements of the victim to prove the corpus delicti.id: 10007
Court abused its discretion in having defendant shackled at the preliminary hearing absent a showing of necessity.Defendant was shackled and dressed in jail garb at the preliminary hearing. Defendant argued the court erred in refusing to have the shackles removed and the error prejudicially tainted the witness' identification of defendant as the perpetrator. As at trial, shackles should not be employed at a preliminary hearing absent some showing of necessity for their use. The court abused its discretion in ordering defendant shackled absent a showing of necessity. However, the error did not require reversal where the only witness to identify defendant at the preliminary hearing had previously identified him at both a photographic and a live line up.id: 11603
When it is determined a defendant was incompetent at his preliminary hearing the law provides for a second hearing once the defendant's competence is restored.A defendant was found to be incompetent five months after his preliminary hearing, and criminal proceedings were suspended. After his competence was restored he made a nonstatutory motion to dismiss the case. He argued he was incompetent at the time of the preliminary hearing which rendered his commitment unlawful. The trial court properly granted his motion. Pursuant to the amendment to Penal Code section 1368.1, the correct procedure is to conduct a second preliminary hearing once the defendant's competence is restored.id: 15758
Under Proposition 115, evidence admitted at the preliminary hearing, consisting entirely of hearsay testimony by a non-investigating officer lacking personal knowledge was insufficient to constitute probable cause.Proposition 115 does not authorize a finding of probable cause based on the testimony of a non-investigating officer or reader merely reciting the police report of an investigating officer. The testifying officer must have sufficient knowledge of the crime or the circumstances under which the out-of-court statement was made so as to meaningfully assist the magistrate in assessing the reliability of the statement.id: 11637
Defendants were improperly convicted of numerous counts which were not shown by evidence adduced at their preliminary hearings.The People argued that the convictions based upon the second amended informations were valid because the evidence at the preliminary hearings may have supported the same number of violations in the same time frame or because conspiracy was charged. However, the convictions were reversed where the evidence supporting the offense charged was not adduced at defendants' respective preliminary hearings.id: 11608
Proposition 115 does not authorize the admission of multiple hearsay at a preliminary examination.At the preliminary hearing, the People presented the testimony of a law enforcement officer who had talked with a criminalist regarding an analysis that was done by another criminalist. The People argued that the use of multiple hearsay at a preliminary hearing was proper pursuant to Proposition 115 (California Constitution, Article I, Section 30, subd. (b) and Penal Code Section 872, subd. (b)). However, the provisions at issue do not provide for the admission of multiple hearsay to establish probable cause at a preliminary hearing.id: 11620
Multiple level hearsay is inadmissable at a preliminary examination even when offered by an otherwise qualified investigating officer.Multiple level hearsay is inadmissible at a preliminary examination even when offered by an otherwise qualified investigating officer. Therefore, the magistrate erroneously overruled the specific objection articulated by defense counsel at the preliminary examination to the multiple level hearsay. All statements related to the officer who prepared the report by the witnesses were inadmissible and these declarations were essential to the finding of probable cause.id: 11616
Officers may not testify as to multiple hearsay at a preliminary hearing.Following the homicide, Officer Martinez spoke to witnesses and then briefed Officers Peterson and Wong. Wong and Peterson testified at the preliminary hearing as to the information they had been provided by Martinez. This was double hearsay and inadmissible at the preliminary hearing under Proposition 115.id: 11619
Officer was qualified to testify at the preliminary hearing as to statements related to him by another officer investigating the crime but not as to statements made by the victim to another officer.Officer Vargas was a qualified investigating officer for purposes of giving preliminary hearing testimony following Proposition 115 because he had spoken to Officer Grugall who had initially contacted the victim and arrested defendant. He could therefore testify to Officer Grugall's out of court statements concerning what Grugall saw and did. However, Vargas was <U>not</U> qualified to testify as to what the victim told Grugall. This multiple hearsay is inadmissible under Proposition 115.id: 11618
Statement that the officer had completed a class on Proposition 115" did not establish proper foundation to permit his hearsay testimony at the preliminary hearing.Penal Code section 872, subdivision (b), provides for a finding of probable cause based on the sworn testimony of a police officer only if the officer has five years of law enforcement experience or has completed a training course certified by the Commission on Peace Officer Standards and Training (POST). The officer in the instant case had only two years experience, but stated that he had completed a class through the Long Beach Police Department on Proposition 115." This testimony did not establish that the course had been certified by POST. Therefore, the People did not establish a crucial foundational requirement for admission of the officer's hearsay testimony.id: 11629
Defense may call the prosecution's hearsay declarants as defense witnesses at a preliminary hearing upon a proper showing.In the context of a preliminary hearing conducted on the sworn testimony of a law enforcement officer under Penal Code section 872, subd. (b), the magistrate has discretion to permit the defense to call the prosecution's hearsay declarants as defense witnesses upon a proper showing under section 866, subd. (a).id: 11609
Supreme Court finds Puerto Rico's closed preliminary hearings unconstitutional.In <i>Press-Enterprise v. Riverside County</i>, 478 U.S. 1 (1986), the Supreme Court struck down a California law that allowed magistrates to close preliminary hearings to the public if it was reasonably likely that the defendant's right to a fair trial would be prejudiced by an open hearing. Here, a Puerto Rican newspaper challenged Rule 23(c) of the Puerto Rican Rules of Criminal Procedure which provides that the preliminary hearing would be held privately unless the defendant requested otherwise. In a <i>per curiam</i> opinion relying on <i>Press-Enterprise</i>, the Supreme Court struck the privacy provision of Rule 23(c) as a violation of the First Amendment. Puerto Rico's reliance on tradition and its small size and dense population was misplaced. Prejudice to a defendant's fair trial rights must be addressed on a case by case basis.id: 11632
Since the People can elicit incriminating hearsay from a law enforcement officer at a preliminary hearing, the defense can elicit exculpatory hearsay from a law enforcement officer.A defendant has the right to introduce exculpatory evidence under certain circumstances at a preliminary hearing. The plain language of Penal Code section 872, subdivision (b) permits the admission of hearsay by the defense to rebut or foreclose a finding of probable cause. However, the defense enjoys no broad general right to disregard the hearsay rule, section 872, subdivision (b) is limited to qualified law enforcement officer testimony. The defense may thus introduce hearsay in its favor from a law enforcement officer, either on cross-examination of a People's witness or when the officer is called by the defense as its own witness if the requirements of section 866 are met. However, having failed to make an offer of proof before the magistrate, defendant failed to establish that his statements to the officer were exculpatory and therefore his writ petition was denied.id: 11628
Defendant may not be convicted of an offense not shown by the evidence at the preliminary hearing.Defendant was convicted of being a felon in possession of a firearm. The evidence showed two completely different incidents, involving two separate weapons, that could have supported two charges of violating Penal Code section 12021, subdivision (a). However, defendant was only charged with a single violation and the evidence presented at the preliminary hearing portrayed only a single incident. To the extent the jury could have convicted defendant for the other possession, which the prosecutor's argument and the court's instructions indicated it could, the evidence would have been based on an event that was not the subject of the preliminary hearing. Such a conviction is improper. Defense counsel rendered ineffective assistance by not objecting when it became clear the jury was being asked to convict based on either incident.id: 15755
A defendant must be competent at the preliminary hearing.The prosecution argued the passage of Proposition 115 has so eroded the purpose of a preliminary hearing that it is now permissible to conduct a hearing while the defendant is incompetent. However, a defendant maintains fundamental statutory and constitutional rights to be present at his or her preliminary hearing and to be afforded the right to counsel. These rights are denied if a defendant is incompetent.id: 15754
Supreme Court says rule requiring judicial finding or probable cause within 48 hours of arrest is retroactive.In <i>Gerstein v. Pugh</i>, 420 U.S. 103 (1975), the Supreme Court held that the 4th Amendment's shield against unreasonable seizures requires a prompt judicial determination of probable cause following an arrest without a warrant. In <i>County of Riverside v. McLaughlin</i>, 500 U.S. 44 (1991), the Court held that prompt generally means within 48 hours of the warrantless arrest; absent extraordinary circumstances. A longer delay violates the 4th Amendment. In <i>Griffith v. Kentucky</i>, 479 U.S. 314, 328 (1987) the Court held that rules for the conduct of criminal prosecutions are to be applied retroactively to all cases, state or federal . . . not yet final when the rule is announced. Accordingly, in the present case, in a 7-2 opinion written by Justice Ginsburg, the Supreme Court held that <i>McLaughlin</i> applied retroactively to the defendant, whose case was not final when McLaughlin was announced. Nevertheless, the Court left it up to the Nevada Supreme Court to determine the appropriate remedy for the 4-day delay in bringing the defendant before a magistrate. Justice Thomas and Chief Justice Rehnquist dissented.id: 10987
Updated 2/22/2024The court erred in failing to conduct a preliminary hearing within 60 days of arraignment absent a personal waiver from defendant, as the 60-day rule was not included in the emergency orders extending certain deadlines. Since a state of emergency was declared in March, the Governor and Chief Justice have issued a series of statewide orders extending deadlines in response to the COVID-19 pandemic. The emergency orders did not address the defendant’s right to a preliminary hearing within 60 days of the arraignment under Penal Code section 859b. The rule is absolute and the trial court erred by continuing the hearing beyond 60 days without a personal waiver from defendant, and thereafter erred in denying the motion to set aside the information.id: 27064
Good cause need not be shown for continuances requested within the 10 day statutory speedy preliminary hearing time period.The trial court erred in denying the prosecution’s request to continue the preliminary hearing for lack of good cause and dismissing the complaint. When Penal Code sections 859b and 1050 are read together, section 1050 does not apply to a request to continue a preliminary hearing, where as here, the request and requested future date fall within the statutory 10-day time limit. No showing of good cause was required.id: 24592
The investigator’s testimony regarding the doctors’ medical opinions on cause of death was sufficiently reliable to be admitted at the preliminary hearing. In 2010, defendant was charged for a murder that took place in 1994. At the preliminary hearing, a homicide investigator with no specialized training testified about the forensic evidence and conveyed the expert opinions of two doctors who believed the victim died from nicotine poisoning. Defendant argued this testimony was unreliable and he should not have been bound over for trial. However, the expert opinion on cause of death was sufficiently reliable and the court did not err by allowing the investigator to present that evidence at the preliminary hearing. id: 23227
The trial court did not err by denying defendant’s request to continue the preliminary hearing pending the results of the Pitchess motion.Defendant sought Pitchess discovery to obtain evidence for use at the preliminary hearing, and his attorney informed the court that he would be requesting a continuance of the hearing if the Pitchess discovery revealed potential defense witnesses. Although a defendant may file a Pitchess motion before a preliminary hearing, the pendency of that motion will not necessarily constitute good cause to postpone the hearing over the prosecutor’s objection.id: 21704
Defendants could not challenge the burglary charges filed in the information after those issues had been rejected by the magistrate. Following the preliminary hearing, the magistrate declined to hold defendants to answer on a burglary charges and burglary special circumstance allegations. The information subsequently filed included both despite the magistrate’s ruling. Defendants argued the magistrate’s ruling precluded the prosecution from refiling the burglary charges. The rule announced in People v. Pompa-Ortiz (1980 27 Cal.3d 519, preventing appellate review of an alleged error that occurred during a preliminary hearing also applies where the alleged error occurred in the trial court after the preliminary hearing. Whether defendants could show an erroneous denial of their Penal Code section 995 motions, they could not show prejudice where the jury convicted them of the burglary charges and found the special circumstance allegations to be true.id: 21756
Defendant was entitled to daily transcripts from preliminary hearing in a potential death penalty case.The prosecution charged defendant with special circumstance murder but had not announced a decision on whether it would seek the death penalty. Since this was a case in which a death sentence may be imposed, Penal Code section 190.9, subd.(a)(1) required the preparation and certification of daily transcripts of the preliminary hearing.id: 19988
Defendant, who waived time and fled, was not entitled to a preliminary hearing within 10 court days of her reappearance.Defendant, while out in custody, waived her right to have a preliminary hearing within 10 and 60 days of her plea. She failed to appear for a settlement conference and was arrested on a bench warrant. The preliminary hearing took place 15 court days after her reappearance in custody. The magistrate erroneously dismissed the complaint after finding the preliminary hearing untimely since Penal Code section 859b does not require that a preliminary hearing be held within 10 court days of a defendant's appearance in custody. Contrary to defendant's claim, a defendant who waives time and fails to appear is not similarly situated to one who remains in continuous custody from the time of the arraignment.id: 18751
The court erred in dismissing the complaint based on the prosecutor's failure to show good cause for a continuance prior to the preliminary hearing.The prosecutor argued the trial court lacked the authority to dismiss the complaint, even where the prosecutor failed to show good cause for the continuance, so long as the requested date fell within the statutory period required for a preliminary hearing under Penal Code section 859b. A dismissal of a complaint for noncompliance with the requirements for a continuance within the time limits set forth in the preliminary hearing statute would not be in furtherance of justice. The magistrate erred in dismissing the complaint.id: 17747
Police officer may testify at a preliminary hearing as to witness statements that were translated by unbiased bystanders.Following Proposition 115, qualified police officers may relate the statements of out-of-court declarants at a preliminary hearing. However, defendant argued that because of the role played by translators during the out-of-court interviews, the officers' testimony in the present case constituted inadmissible multiple hearsay. Contrary to defendant's claim, the participation of a translator in this circumstance does not interpose an additional layer of hearsay. Rather, a generally unbiased and adequately skilled translator simply serves as a "language conduit," so that the translated statement is considered to be the statement of the original declarant, and not that of the translator.id: 16704
Good cause existed to interrupt the preliminary hearing for a day to allow the magistrate to attend a judicial conference where the hearing had long exceeded the original time estimate.Penal Code section 861 requires dismissal of a criminal complaint if the preliminary examination is not completed in one session unless the magistrate, "for good cause shown by affidavit," postpones it. The magistrate did not abuse its discretion in finding good cause for a postponement based on his absence in order to attend a one-day judicial conference. Administrative obligations do not establish good cause where they can be accommodated by proper planning. Here, however, the conflict arose only because the hearing had long exceeded the original time estimate, and the defendants delayed their objection. Under the circumstances the one-day postponement did not violate section 861.id: 15756
Officer may relate the confession of a nontestifying codefendant implicating defendant at a preliminary hearing without violating hearsay or confrontation clause principles.At a joint preliminary examination of multiple defendants charged with murder and other crimes, the prosecutor sought to admit, as against the defendant and a co-defendant, the testimony of an investigating officer relating the confession of a nontestifying codefendant, implicating defendant and the codefendant in the crimes. The officer's testimony, which probably would have been inadmissible at the defendant's trial (under <i>Bruton/Aranda</i> principles) was nonetheless admissible against defendant for the limited purpose of establishing probable cause to hold defendant for trial.id: 15757
Evidence that will justify a prosecution need not be sufficient to support a conviction.An information will not be set aside or a prosecution thereon prohibited if there is some rational basis for assuming the possibility that an offense has been committed and the accused is guilty of it. The magistrate need not be convinced beyond a moral certainty of the guilt of the accused.id: 11610
Forensic expert properly testified at the preliminary hearing about hearsay statements made to him by persons he interviewed.In <i>Whitman v. Superior Court</i> (1991) 54 Cal.3d 1036, the Supreme Court held that at a preliminary examination conducted pursuant to Penal Code section 872 an investigation officer is permitted to testify to hearsay statements he has gathered in the course of his investigation. Defendant argued the hearsay statements of forensic experts should be excluded from this rule or at least such statements should be determined unreliable. However, nothing in Proposition 115 provides a basis for treating forensic experts differently than other potential witnesses an officer may interview during an investigation.id: 11611
Franchise Tax Board investigator was qualified to offer hearsay testimony at the preliminary hearing.Penal Code section 872, subdivision (b), enacted as part of the crime Victim's Justice Reform Act (Proposition 115) in 1990 permits hearsay testimony at a preliminary hearing by a law enforcement officer. A Franchise Tax Board investigator qualifies as a law enforcement officer for purposes of this provision.id: 11612
Grant of a continuance for the preliminary hearing in a multiple defendant case does not require O.R. release for codefendants.Codefendants sought release from custody pursuant to Penal Code section 859b on their own recognizance after the preliminary hearing was continued. The trial court erred in ruling section 1050.1 was inapplicable to preliminary hearings and that section 859b mandated an O.R. release. Harmony can be achieved between section 859b and section 1050.1 by construing defendant in section 859b, subdivision (b)(1) to mean all jointly charged defendants such that a request for a continuance by one defendant is deemed a request by all jointly charged defendants. The magistrate maintains the discretion to release any defendant from custody but such release is not mandatory.id: 11613
Hearsay statements of a minor child molest victim who was not competent to testify were properly admitted at the preliminary hearing.Defendant argued the hearsay declaration of a six year-old victim, who was not competent to testify at the preliminary examination, were insufficient to support the magistrate's determination to hold the defendant to answer on the charge of child molestation. However, the preliminary hearing magistrate did not abuse his discretion in admitting the minor's hearsay declarations at the preliminary hearing.id: 11614
Magistrate lacked power to reduce a straightforward felony to a misdemeanor.A magistrate purported to reduce two felony charges to misdemeanors because she believed the evidence at the preliminary hearing was insufficient to hold the defendant to answer felony charges. Neither offense was a felony-misdemeanor (wobbler) which could have been reduced. The magistrate was without power to reduce these offenses to misdemeanors, and her doing so amounted to dismissal of the felony charges. However, the superior court may review the magistrate's order pursuant to Penal Code section 871.5.id: 11615
Officer may testify to completing a certified POST course before offering hearsay testimony at a preliminary hearing.Under Penal Code section 872, subd. (b), added by Proposition 115, probable cause at a preliminary examination may be based in whole or in part on hearsay testimony by law enforcement officers with less than five years of law enforcement experience who have completed a training course on investigation and reporting of cases and testifying at preliminary hearings which has been certified by the Commission on Peace Officer Standards and Training (POST). The officer may testify to completing a course on these subjects, and its certification by POST may be established by the use of judicial notice of POST's administrative regulations.id: 11617
Proposition 115 preliminary hearing procedure allowing hearsay evidence violates neither the state nor the federal confrontation clause.Pursuant to Proposition 115 an investigating officer may relate at the preliminary hearing any relevant statements of victims or witnesses, if the testifying officer has sufficient knowledge of the crime or the circumstances under which the out-of-court statement was made so as to meaningfully assist the magistrate in assessing the reliability of the statement. The new measure permits the magistrate to base a finding of probable cause entirely on that testimony. The new provision represents a specific exception to the broad confrontation right set forth in the state constitution. Moreover, the new, limited form of preliminary hearing sufficiently resembles the Fourth Amendment probable cause hearing to meet federal confrontation clause standards despite reliance on hearsay evidence.id: 11621
Proposition 115 preliminary hearing procedures do not violate the separation of powers doctrine.Defendant argued that the new hearsay procedures violate the constitutional doctrine of separation of powers in that the prosecutor is given excessive power to control the quantity and quality of the evidence admitted at preliminary hearings. However, because the prosecutor's authority is now specifically authorized by the state constitution, the general separation of powers doctrine does not apply. Moreover, the magistrate retains full authority and discretion to rule on the sufficiency of defendant's offer of proof, to allow the admission of relevant defense evidence, and ultimately to determine whether the proffered evidence demonstrates probable cause to hold the defendant to answer for the charged offense.id: 11622
Proposition 115 preliminary hearing provision does not violate due process but provides another hearsay exception allowing a probable cause finding based on hearsay testimony of officers.Defendant argued that the new preliminary hearing procedure set forth in Penal Code section 872, subdivision (b) denied him due process by impliedly providing that only the prosecution may introduce hearsay. However, the statute contains no broad grant of authority to the prosecutor to rely on hearsay evidence. It merely specifies a further exception to the hearsay rule by allowing a probable cause finding to be based on certain hearsay testimony by law enforcement officers having specified experience or training.id: 11623
Prosecution's failure to disclose exculpatory evidence did not necessitate a new preliminary hearing where the reviewing court weighed the incriminating evidence against the exculpatory effect of the denied evidence.Prior to defendant's preliminary hearing prosecutors failed to inform defense counsel that a witness to the robbery emphatically denied defendant was one of the two perpetrators. This constituted substantial material evidence on the issue of guilt and the failure to disclose the evidence constituted a violation of <i>Brady v. Maryland</i> (1963) 373 U.S. 83. Because the error was not visible within the four corners of the preliminary hearing transcript it could not be addressed by a Penal Code section 995 motion. Rather, the nonstatutory motion to dismiss was the appropriate vehicle to address the error. The nonstatutory motion to dismiss, unlike the 995 motion, requires a show of prejudice from the denial of a substantial right before a new preliminary hearing is warranted. The trial court did not abuse its discretion in denying the motion to set aside the information where it was clear the lower court scrutinized each piece of incriminating evidence from the preliminary hearing and carefully weighed it against the exculpatory effect of the witness' refusal to identify defendant.id: 11624
Pursuant to Proposition 115, an arson investigator may testify to hearsay statements at a preliminary hearing.At the preliminary hearing an arson investigator for the fire department was allowed to testify to hearsay statements pursuant to Penal Code section 872, subdivision (b), one of the statutory provisions incorporated in Proposition 115. Defendant argued that an arson investigator is not qualified to testify as a law enforcement officer within the meaning of that provision. However, a peace officer under section 830.37 subdivisions (a) and (b) falls within the definition of a law enforcement officer in section 872, subdivision (b).id: 11625
Pursuant to Proposition 115, where cause for a reasonable continuance without release exists as to one defendant, it exists as to all codefendants.On April 9, 1991, defendant was arraigned on a felony complaint charging him and 10 codefendants with murder. They were remanded to custody pending the preliminary examination which was calendared for April 19, 1991. On that date, it was necessary for one of the codefendant's attorney to request a continuance as he was engaged in a jury trial. Defendant declined to concur in the continuance and argued he should be released on his own recognizance. However, where cause for a reasonable continuance without release exists as to one defendant, it exists as to all codefendants. This result achieves harmony between Penal Code section 859b and 1050.1 (Prop.115).id: 11626
Restriction of cross-examination at the preliminary examination issue could not be raised on appeal where counsel failed to move to set aside the information.Appellant argued he was denied due process because the magistrate erred in restricting cross-examination at the preliminary hearing concerning a photographic line-up presented to certain witnesses. However, defense counsel's failure to move to set aside the information pursuant to Penal Code section 995 barred the defense from questioning on appeal any irregularity in the preliminary examination.id: 11627
Submission of guilt phase on the preliminary hearing transcripts was not tantamount to a guilty plea given defense counsel's vigorous advocacy and there was no error in failing to advise defendant was relinquishing his privilege against self-incrimination.At the guilt phase in defendant's capital trial the case was submitted on the preliminary hearing transcripts. Defendant argued because the action was tantamount to pleading guilty (or a slow plea) the trial court prejudicially erred when it failed to advise in the binding waivers that defendant would be relinquishing his Fifth Amendment privilege against self-incrimination. However, submission of the case on the preliminary hearing transcripts was not tantamount to a guilty plea given his extensive cross-examination of witnesses and his constant arguments that the facts did not support first degree murder. Moreover, through his submission defendant chose not to testify and therefore never surrendered his self-incrimination privilege. Because he never surrendered the right there was no requirement of a personal, on-the-record waiver.id: 11630
Superior court had jurisdiction to conduct the postindictment preliminary hearing.Defendant, indicted by the county grand jury, requested a postindictment preliminary hearing. He argued that upon the filing of his request the indictment became functus officio and that the state could not proceed against him until it filed a complaint with the municipal court. However, the superior court did not lack jurisdiction to conduct the postindictment preliminary hearing and defendant was properly bound over for trial.id: 11631
The federal constitutional right of confrontation does not prohibit the use of hearsay evidence at preliminary examinations as provided for in Proposition 115.The prosecution's reliance on hearsay evidence at defendant's preliminary hearing as authorized by certain provisions of Proposition 115 did not violate his rights to cross-examine and confront adverse witnesses as guaranteed by the Sixth Amendment to the United States Constitution. Moreover, in related situations involving the Fourth, Fifth and Fourteenth Amendments, the United States Supreme Court has allowed the use of hearsay evidence in various criminal proceedings. Although not dispositive of the issue, these decisions suggest there may not be a federally guaranteed constitutional right not to have hearsay evidence admitted against a defendant at a preliminary hearing.id: 11633
The magistrate could not consider reducing the felony wobbler to a misdemeanor after the superior court reinstated the wobbler as a felony following the dismissal of the count at the preliminary hearing.The magistrate was not permitted to revisit the issue of whether to exercise his discretion under Penal Code section 17, subdivision (b)(5) to reduce a felony charge brought under a "wobbler" statute to a misdemeanor, after the case had been returned to him by the superior court via an order, issued under section 871.5, reinstating as a felony a wobbler count previously dismissed at the preliminary hearing under section 871.id: 11634
The provisions of Proposition 115 which permit the use of hearsay at preliminary hearings by a qualified law enforcement officer are but another exception to the hearsay rule.At the preliminary hearing, a detective testified from an arrest report prepared by another officer regarding statements made by a witness. Appellant argued that even if the state and federal constitutions were not violated by the use of hearsay at his preliminary hearing, the use of multiple level hearsay is not sanctioned by Proposition 115 or other law. However, the provisions of Proposition 115 which permit the use of hearsay at preliminary hearings by a properly qualified law enforcement officer are but another exception to the hearsay rule. Moreover, there is no requirement that only so-called first level hearsay is admissible at the preliminary hearing.id: 11635
The use of hearsay at defendant's preliminary hearing pursuant to the provisions of Proposition 115 did not violate the California Constitution.Defendant argued the officer's hearsay statements at the preliminary examination contravened the California Constitution. While this was true prior to Proposition 115, the adoption of Article I, section 30, subd. (b) and the amendment to Penal Code section 872, materially changed the law concerning use of hearsay. Article I, section 30 unequivocally provides that hearsay evidence shall be admissible at preliminary hearings.id: 11636
After the bindover and filing of the information the magistrate lacked authority under section 17, subdivision (b)(5) to reduce the wobbler to a misdemeanor.The same superior court judge sat as magistrate at the preliminary hearing and later as superior court judge. After the bindover and the filing of the information the court, pursuant to Penal Code section 17, subdivision (b)(5), purported to grant a motion to reduce a wobbler to a misdemeanor. However, at this stage of the proceeding the magistrate had lost the authority to grant the motion under section 17(b)(5). Moreover, the events had not yet occurred to trigger the superior court's authority to consider reduction to a misdemeanor pursuant to section 17, subdivisions (b)(1) or (3). The judgment was reversed.id: 11601
Appellate court may take an independent review in determining whether a defendant was denied a substantial right at the preliminary hearing.The Court of Appeal may take an independent review in determining the question of whether the defendant was denied a substantial right at the preliminary hearing.id: 11602
Court erred in setting aside the information based on multiple hearsay testimony where the testimony of another officer was sufficient to support the information.Two deputy sheriffs testified at defendant's preliminary hearing. One had virtually nothing to do with the case other than apparently to read a police report or obtain statements from the officers who actually investigated the case. His double hearsay statements should not have been admitted at the preliminary hearing. However, the superior court erred in setting aside the information. The other deputy could have properly related the witness statements to establish the stolen nature of the wheel rims. The failure to object to the testimony of the first deputy and to assert insufficiency of the evidence based on the corpus delicti rule were fatal to defendant's position.id: 11604
Court need not obtain a new waiver from defendant every time preliminary hearing is continued.Penal Code section 859(b) does not require that the court obtain a new waiver from defendant every time the preliminary hearing is continued. The statute's requirement that a complaint be dismissed, if the defendant has not personally waived his right to a preliminary hearing within 10 days or the People have not established good cause for the continuance, applies only to those defendants who are in custody. Section 859(b) does not, however, preclude a dismissal pursuant to any authority or power available to the court for failure to show good cause as required by section 1050, even though the requested continuance is within the 60-day limit provided by section 859(b).id: 11605
Defendant was not denied a substantial right at his preliminary hearing where collateral impeachment evidence was withheld by the prosecutor until after the hearing.It was alleged that the prosecutor failed to inform defendant until after his preliminary hearing that the victim of all the charges was himself currently charged with filing a false report, a misdemeanor. Defendant filed a nonstatutory motion to dismiss. The Superior Court did not err in denying the motion because defendant was not denied a substantial right at the preliminary hearing. Had defendant been furnished the reports and thus able to cross-examine the victim, the impeachment, if any, would have been collateral. The false report was extraneous to defendant, and provided no evidence of adverse bias, interest, or motive.id: 11606
Defendant's optimistic statement the victim would testify as to consent was an insufficient offer of proof to call her as a witness at the preliminary hearing pursuant to section 866, subdivision (a).Defendants were charged with various sex offenses perpetrated upon an unconscious victim. The magistrate denied the defendant's request to call the victim as a witness at the preliminary hearing. Penal Code section 866, subdivision (a), as amended by Proposition 115, restricts a defendant's right to call witnesses at a preliminary hearing. The defense asserted the victim would testify the encounter was consensual but failed to make an offer of proof which demonstrated she would so testify. Section 866, subdivision (a) did not violate defendant's right to confront and cross-examine witnesses. Moreover, the provision does not exclude relevant evidence in violation of Article 1, section 28(d) of the California Constitution because the scope of relevant defense evidence at the preliminary hearing has been substantially narrowed and discovery is no longer permissible. Therefore, the magistrate did not err in denying defendant's request to call the victim as a witness.id: 11607
Failure to advise a defendant who submits on the preliminary hearing transcript regarding the right against self-incrimination is not reversible per se.Defendant's submission of his case on the preliminary hearing transcript was tantamount to a guilty plea. He was never advised he would be waiving his right against self-incrimination by submitting the case upon the transcript. The failure to render such advice was not reversible per se. Viewed cumulatively with the advisements properly given, it was clear that defendant knew he would be incriminating himself by submitting the case on the preliminary hearing transcript. His choice to do so, with the advice of counsel, was voluntary and intelligent.id: 11551
Pursuant to Proposition 115, an indicted defendant is no longer entitled to a postindictment preliminary hearing.The new constitutional provision (California Constitution, Article I, Section 14.1) enacted by Proposition 115 has abrogated the holding of <i>Hawkins v. Superior Court</i> (1978) 22 Cal.3d 584. As such, a defendant indicted in California is no longer entitled to, and indeed may not be afforded, a postindictment preliminary hearing or any other similar procedure. The new provision violates neither state nor federal equal protection principles.id: 11456
Preliminary hearing testimony put defendant on notice that the prosecution intended to show he killed the victims by injecting them with poison.Defendant argued that prosecution's failure to expressly inform him that it was relying on a theory of murder by poison deprived him of adequate notice of the charges as required by the Sixth Amendment. However, the testimony presented at the preliminary hearing put the defense on notice that the prosecution intended to show that defendant killed his victims by deliberately injecting them with overdoses of lidocaine. This complied with the notice requirements of the federal constitution.id: 9492
Preliminary hearing transcript was admissible to prove the prior conviction was a serious felony because it came within the former testimony exception to the hearsay rule.The prosecution sought to admit two pieces of hearsay evidence from the record of defendant's prior assault conviction to prove the prior conviction was for a serious felony within the meaning of Penal Code section 667, subdivision (a), and 1192.7, subdivision (c)(23). The preliminary hearing transcript excerpts were not inadmissible hearsay because they came within the former testimony exception to the hearsay rule. The probation report fragment, however, was inadmissible because it contained hearsay that was not shown to be within any hearsay exception.id: 9343
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Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245