Preliminary Hearings In California

Front 1

What is the purpose of a preliminary hearing?

Back 1

To establish whether probable cause exists to believe that the defendant has committed a felony. Pen. Code § 866.

The examination shall not be used for the purposes of discovery.

Front 2

What are some situations in which a preliminary hearing is not required?

Back 2

1. After a grand jury indictment;
2. In the prosecution of misdemeanors and infractions;
3. When the defendant pleads guilty or no contest;
4. When the defendant waives the right.

Front 3

Can a defendant unilaterally waive her right to a preliminary hearing?

Back 3

No. She must obtain the consent of both the magistrate and the prosecutor. Pen. Code § 860.

A DDA may not waive a preliminary hearing except in unusual cases. Such a waiver must be approved by the Head Deputy or DIC and documented in the case file.

Front 4

Is a defendant entitled to counsel at a preliminary hearing?

Back 4

Yes. Although the right to counsel may be waived. Pen. Code § 1018.

Front 5

When is the earliest a preliminary hearing can be conducted after arraignment?

Back 5

2 court days.

Both sides get two court days from the arraignment to prepare for the examination. Pen. Code § 859b.

Front 6

When must a preliminary hearing be conducted?

Back 6

Within ten court days of the date of the arraignment or defendant’s plea, whichever is later, unless the defendant waives time or there is good cause for a continuance.

Front 7

Is good cause required to continue the preliminary hearing within the original ten day period?

Back 7

No. Penal Code § 1050(k) provides that good cause is not required for either the prosecution or the defense to continue

the preliminary hearing within the original 10 day period between arraignment and preliminary hearing.

Thus, good cause is not required to “trail” a case set on day 8/10 to day 9/10 or 10/10 within the original 10-day period.

Front 8

What happens if the prosecution does not conduct the preliminary hearing within ten days?

Back 8

If the defendant is in custody solely on the complaint, then dismissal is required. If the defendant is in custody due to a prior conviction or for some other reason, he is not "in custody solely on the complaint" and is therefore not entitled to a dismissal.

The People may release an in-custody defendant O.R. on the 10th day to avoid a dismissal. People v Standish (2006) 38 C.4th 858.

Front 9

What happens if the prosecution does not conduct the preliminary hearing within ten court days but the defendant is out of custody?

Back 9

Dismissal is normally required if the ten day deadline is blown, but dismissal is not appropriate if defendant is out of custody.

Front 10

What are the prosecution's two options if they are not ready and defendant is in custody and will not waive time?

Back 10

1. dismiss the case and re-file. The defendant will remain in custody and a new ten day period will begin; or

2. continue the case within the 60-day period. The defendant must be given an O.R. release.

Front 11

What is the effect of a time waiver on an out-of-custody defendant?

Back 11

Once an out-of-custody defendant waives time for the preliminary hearing, new time waivers are not required. Defendant has agreed to a preliminary hearing "at the earliest possible time." The only requirement is that the preliminary hearing be held within 60 days.

Front 12

What can happen if the prosecution requests a continuance in bad faith?

Back 12

Dismissal is a possible sanction if the prosecution requests a continuance in bad faith. However, dismissal is not an appropriate sanction for failure to comply with Penal Code § 1050.

Front 13

Can the people continue a case with two defendants when they only have good cause for a continuance as to one?

Back 13

Yes. Where two or more defendants are jointly charged, a good cause continuance is treated as a good cause for each defendant so as to maintain joinder. All defendants remain in custody. In other words, good cause for one defendant to continue a case means there is good cause for all the defendants, even if they object to the continuance. Penal Code § 1050.1.

Front 14

Are there any exceptions to the rule that a preliminary hearing must be held within 10 court days?

Back 14

Yes, two exceptions:

1. the defendant may personally waive her right to preliminary examination within ten days; and

2. the prosecution may establish good cause for a continuance beyond the ten day period.

Pen. Code § 859b.

Front 15

What are some examples of good cause continuances?

Back 15

1. failure of law enforcement to timely transport defendant to court;

2. to the defense to secure the attendance of a material witness to present an affirmative defense where diligence is shown;

3. to the prosecution to allow for the attendence of a specially assigned DDA.

Pen. Code § 1050(g)(2).

Front 16

Defendant is a "miss-out" and cannot be brought to court for his preliminary hearing, which was set ten days after his arraignment and plea. Must the case be dismissed?

Back 16

No. Failure of law enforcement to timely transport defendant to court is good cause for a continuance beyond the ten day period. When good cause for a continuance is shown, dismissal is not required. Pen. Code § 1050(g)(2).

Front 17

A preliminary hearing is on-calendar 10 days after plea and arraignment, but it is assigned to the Hardcore Gang unit. You don't know which DDA it is assigned to, and no one in the unit is available today. Is there good cause for a continuance or will the case be dismissed?

Back 17

There is good cause. A good-cause continuance may be given to the prosecution to allow for the attendance of a specially assigned DDA. Pen. Code § 1050(g)(2).

Front 18

What happens if the preliminary hearing is set or continued beyond the ten day period?

Back 18

The defendant must be released on his own recognizance. There are several exceptions to this rule.

Front 19

Can defendant's actions bring his case within an exception to the rule that a defendant must be released on his own recognizance if the preliminary hearing is set or continued beyond the ten day period?

Back 19

Yes. Defendant can be held if:

1. Defendant requests the preliminary hearing be conducted beyond the 10-day period;
2. Defendant is charged with a capital offense and the proof is evident and the presumption great; or
3. A witness is unavailable due to the actions of the defendant.

Front 20

Can defendant's counsel's actions bring his case within an exception to the rule that a defendant must be released on his own recognizance if the preliminary hearing is set or continued beyond the ten day period?

Back 20

Yes, Defendant can be held when there is:

1. Illness of counsel;
2. Unexpected engagement of counsel in a jury trial; or
3. Unforeseen conflicts of interest arise requiring appointment of new counsel.

Front 21

What is the outside limit for holding a preliminary hearing?

Back 21

The preliminary hearing must be held within 60 days of arraignment or plea, whichever is later.

There is no "good cause" exception to this rule.

Front 22

What happens when two defendants are charged on the same complaint and one waives his 60 day rights but the other does not?

Back 22

Split them up! The non-waiving defendant must have a timely preliminary hearing.

Contrast the "good cause for all" rule that allows joinder to be maintained.

Front 23

What is the best practice when asking defendant for a time waiver?

Back 23

Whenever a defendant waives his 10-day right, a 60-day waiver should also be sought.

Front 24

Can a preliminary hearing be completed in more than one session?

Back 24

No. The preliminary examination shall be completed at one session or the complaint shall be dismissed, unless the magistrate, for good cause shown by affidavit, postpones it.

Front 25

If a preliminary hearing must be completed in more than one day and good cause is shown, what is the length of the postponement?

Back 25

No more than ten court days.

Front 26

What are some exceptions to the "one session" rule for preliminary hearings?

Back 26

1. Waiver;

2. Good cause, in which case the defendant is entitled to release; or

3. A request by the defendant to postpone in order to file a § 1538.5 motion.

Front 27

If a preliminary hearing that has begun is postponed mid-hearing, what is deadline to finish the hearing?

Back 27

60 days from the date the motion to postpone is granted.

Front 28

Does the one session rule require that a preliminary hearing be completed in one day?

Back 28

No. The word "session" does not have a fixed meaning; rather it indicates "an actual sitting continued by adjournments in ordinary course from day-to-day, or over Sundays and holidays, but not interrupted by adjournments to a distant day."

Front 29

What are some examples of reasons the court may adjourn the preliminary hearing without violating the "one session" rule?

Back 29

1. to allow counsel to research an evidentiary issue;
2. to conduct brief court matters so long as the substantial majority of the court's time is devoted to the preliminary examination;
3. to allow the court to attend a judicial conference; or
4. to accommodate the special physical, mental, or emotional needs of a witness ten years of age or younger.

Front 30

What are some examples of reasons the court may not adjourn the preliminary hearing without violating the "one session" rule?

Back 30

1. when defendant objects to the People's motion for a one day continuance to bring a witness before the court.

2. when the People fail to transport the defendant to court in a timely fashion.

Front 31

What are some of the powers that a magistrate has at a preliminary hearing?

Back 31

1. Weigh evidence, resolve conflicts in the testimony, and give or withhold credence to witnesses;

2. hold the defendant to answer;

3. discharge the defendant if there is insufficient evidence;

4. reduce a "wobbler" to a misdemeanor before, during, or after the preliminary hearing; or

5. rule on a demurrer.

Front 32

What is a magistrate unable to do at a preliminary hearing?

Back 32

1. make legal findings; these are not binding on the People; or

2. fix the degree of an offense.

Front 33

Does the prosecution have to provide Brady material prior to a preliminary hearing?

Back 33

Yes. Failure to do so may result in sanctions.

Front 34

Can a defense attorney inspect a DA case file?

Back 34

Yes. The inspection should occur in the DA's Office or in the courtroom. A defense attorney shall not be permitted to remove the case file from the office or the deputy's possession. Whenever a case file has been inspected, the deputy authorizing the inspection shall prepare an "Acknowledgement of Discovery" form indicating the date, the defense attorney's name and the documents inspected (from the 2005 LPM).

Front 35

Can the court order witnesses excluded during a preliminary hearing?

Back 35

Yes. "While a witness is under examination the magistrate shall, upon motion of either party, exclude all potential and actual witnesses who have not yet been examined." Pen. Code § 867.

Front 36

Who may not be excluded pursuant to an order excluding witnesses?

Back 36

1. the investigating officer;

2. the investigator for the defendant; and

3. the officers having custody of persons brought before the magistrate.

Also a support person may remain for a minor victim of abuse.

Front 37

Can the public be excluded from a preliminary hearing?

Back 37

Yes, by either the defendant or the prosecution.

Front 38

Can a witness have a support person accompany them in court?

Back 38

Yes. Certain serious crimes entitle the witness to up to two support persons.
1. one of these persons can be a witness;
2. one may accompany the witness to the stand;
3. both can be in the courtroom while the witness testifies;
4. the support witnesses cannot take notes.

Front 39

Is the defendant required to be present at the preliminary hearing?

Back 39

Yes. However, once the preliminary hearing is underway, her absence will not prevent the hearing from continuing when:
1. she is disruptive; or
2. is voluntarily absent.

Front 40

Can the defense call witnesses at a preliminary hearing?

Back 40

Yes. However, on a prosecution motion under Penal Code § 866(a), the magistrate must require an offer of proof from the defense as to the testimony expected from a defense witness. See People v. Eid (1994) 31 Cal.App.4th 114, 126–127 (inadequate offer of proof).

Front 41

What are the three permitted purposes of defense witness testimony at a preliminary hearing?

Back 41

The testimony is only permitted if it:

1. establishes an affirmative defense;

2. negates an element of the offense; or

3. impeaches a prosecution witnesses.

Front 42

What are some affirmative defenses that are allowed to be presented at a preliminary hearing?

Back 42

1. discriminatory enforcement;

2. statute of limitations;

3. entrapment.

Front 43

What are some affirmative defenses that may not be presented at a preliminary hearing?

Back 43

1. double jeopardy, res judicata, and collateral estoppel;
2. a police representation which caused the defendant to expect his crime would not be reported to the District Attorney for prosecution.

Front 44

Do defendants jointly charged with the commission of the same offense have a statutory right to separate preliminary hearings?

Back 44

No. Pen. Code § 1050.1.

Front 45

What happens to exhibits at the conclusion of a preliminary hearing?

Back 45

Exhibits are normally retained by the court clerk but can be returned to the offering party. Pen. Code § 1417, 1417.2, and 1417.3.

Front 46

Can a probable cause determination be based on hearsay?

Back 46

Yes. Pen. Code § 872(b).

Front 47

When should deputy district attorneys present hearsay evidence?

Back 47

Hearsay evidence shall be offered only by officers involved in the case investigation or the defendant’s arrest except in unusual circumstances. Get your supervisor's approval.

Front 48

Who can testify to hearsay?

Back 48

"Law enforcement officers" with five years of experience or the completion of a POST-certified course which includes training in the investigation and reporting of cases and testifying at the preliminary hearing.

Front 49

Can an officer testify to hearsay results of expert investigation?

Back 49

Yes. This may include alcohol results, that a laboratory was licensed, and that the testing procedure was unexceptional.

Front 50

What kinds of hearsay are admissible under Prop 115?

Back 50

1. any relevant statements of a victim or witness;
2. testimony of incompetent witnesses;
3. lab reports.

Front 51

Can the defense also present Proposition 115 hearsay evidence?

Back 51

Yes. The defense may also present Proposition 115 hearsay evidence when the officer testifying is qualified and Penal Code § 866 is satisfied. Nienhouse v. Superior Court (1996) 42 Cal.App.4th 92.

Front 52

Does an interpreter create an additional layer of hearsay under Prop 115?

Back 52

No. The interpreter does not create an extra layer of hearsay, so long as the court is convinced that the interpreter is competent and unbiased. The officer may testify to the witnesses’ statements at the hearing.

Front 53

An officer without personal knowledge testifies to hearsay pursuant to Prop 115 by simply reading from another officer's report. Is this sufficient to constitute probable cause to bind the defendant over for trial?

Back 53

No. This testimony is inadmissible. Whitman v. Superior Court (1991) 54 Cal.3d 1063, 1074.

Front 54

Does the secondary evidence rule apply to preliminary hearings?

Back 54

No. Pen. Code § 872.5.

Front 55

Do sentencing enhancements have to be proven at a preliminary hearing?

Back 55

Yes, except that felony convictions do not have to be proven. However, allegations of prior convictions, when they are an element of the crime, must be proven at the preliminary hearing.

Front 56

Are there any special issues regarding accomplice testimony at a preliminary hearing?

Back 56

1. The uncorroborated testimony of an accomplice may be sufficient for the preliminary hearing, even though it is inadequate to sustain a conviction.

2. Bruton does not apply at the preliminary hearing. A defendant may be held to answer solely on the admission of a co-defendant's statements.

Front 57

What happens at a preliminary hearing when misdemeanors are charged with felonies?

Back 57

Misdemeanor charges must be proven at the preliminary hearing.

Front 58

Are there special proof issues regarding vandalism?

Back 58

Lack of permission is not an element of vandalism. Therefore, there is no need to call the owner of the property, unless there is an issue as to the amount of damages.

Front 59

Are there special proof issues regarding possession of drugs?

Back 59

The narcotics must be in a "useable quantity." However, this rule prohibits conviction only when the substance cannot be used, such as when it is a blackened residue or a useless trace. It does not extend to a substance containing contraband, even if not pure, if the substance is in a form and quantity that can be used.

Front 60

What happens when a witness for a preliminary hearing fails to appear once they have been subpoenaed?

Back 60

If the court concludes that the witness is material, it shall issue a bench warrant, and may commit her into custody until the conclusion of the preliminary hearing, the defendant pleads, or the witness is legally discharged. Penal Code section 1332; Code of Civil Procedure § 1993.

Front 61

What if a material witness refuses to testify?

Back 61

The court may hold a witness in contempt. However, this rule doesn't apply to sexual assault victims, domestic violence victims, and minors under 16.

Front 62

Can a witness at a preliminary hearing be videotaped?

Back 62

Yes. Subject to certain conditions and under various provisions of the Penal Code.

Front 63

Can a witness testify at a preliminary hearing through two-way television?

Back 63

Yes. Children under 13 may testify, upon written notice, if the testimony involves sexual offenses, child abuse, or a violent felony committed on a child. Pen. Code Section 1347. There are other conditions.

Front 64

What are five common motions that are brought at a preliminary hearing?

Back 64

1. Demurrer;
2. Motion to dismiss for failure to prosecute;
3. Motion to suppress evidence;
4. Motion to determine competence; and
5. Motion to appoint an investigator to defendant.

Front 65

Can the defendant demur at a preliminary hearing?

Back 65

Yes. A defendant charged with a felony has a statutory right to demur at their arraignment, or prior to entry of a plea. In re Geer (1980) 108 Cal.App.3d 1002. The demurrer must be in writing. Pen. Code §1005

Front 66

Can the defendant bring a motion to dismiss for failure to prosecute?

Back 66

Yes. These claims involve either (a) the delay in filing criminal charges and/or (b) the time between the filing of charges and the commencement of the preliminary hearing. Scherling v. Superior Court (1978) 22 Cal. 3d 493.

Front 67

If the court grants a motion to dismiss for failure to prosecute, is it binding in later proceedings?

Back 67

No. Speedy trial motions can be relitigated in superior court. Findings of the magistrate are not binding on the superior court. People v. McCoy (1983) 147 Cal.App.3d 638.

Front 68

How much notice is required for a 1538.5 motion to be heard at a preliminary hearing?

Back 68

The defense must provide 5 court days written notice for a 1538.5 motion to be heard at the preliminary hearing. If the defense can establish that prior to the date set for the preliminary hearing it was unaware of the grounds for the motion or the evidence it is seeking to suppress, the defense may be granted a continuance. The defense is still required to file a written motion 5 days prior to the resumption of the preliminary hearing. Penal Code §1538.5(f)(2).

Front 69

Is the prosecution required to file a written response to a 1538.5 motion?

Back 69

No. People v. Britton (2001) 91 Cal. App. 4th 1112.

Front 70

Can the prosecution rely on written affidavits at a suppression motion?

Back 70

No. While hearsay evidence is admissible to establish the existence of probable cause, the prosecution must present live witnesses and cannot rely upon written affidavits at the suppression motion. People v. Johnson (2006) 38 Cal. 4th 717.

Front 71

When a 1538.5 motion is heard at a preliminary hearing, can the defendant challenge any evidence?

Back 71

No. The defense may only challenge evidence that the prosecution seeks to admit at preliminary hearing. Pen. Code §1538.5(f)(1).

Front 72

Is the result of a 1538.5 motion at a preliminary hearing the law of the case?

Back 72

No. If a defendant’s 1538.5 motion at the preliminary hearing is denied, she may re-litigate the matter in the trial court. However, she is limited to the superior court reviewing the transcript from the prior hearing unless a showing can be made that the evidence the defense seeks to introduce was unavailable at the preliminary hearing. The superior court is bound by any factual findings made by the magistrate. The prosecution may recall any witness who testified during the suppression motion at the preliminary hearing. Penal Code §1538.5(i); People v. Memro (1995) 11 Cal. 4th 1211.

Front 73

What happens if a defendant prevails on a 1538.5 motion?

Back 73

If, pursuant to a 1538.5 motion, the preliminary hearing magistrate suppresses all or part of the evidence sought to be introduced and does not hold the defendant to answer, the deputy may refile the case or move to reinstate the complaint pursuant to Penal Code § 871.5.

Front 74

What happens if the court grants a 1538.5 motion but still holds the defendant to answer on all counts?

Back 74

The deputy must notify the court and the defendant that the People will bring a motion within 15 days pursuant to Penal Code § 1538.5 (j) to relitigate the validity of the search or seizure.

Front 75

What happens if the court grants a motion to suppress and then dismisses some, but not all, counts against defendant?

Back 75

If, pursuant to a 1538.5 motion, the preliminary hearing magistrate suppresses all or part of the evidence sought to be introduced and holds the defendant to answer on at least one count but dismisses one or more other count(s), the deputy may give notice of a motion to reinstate the dismissed count (Penal Code § 871.5), refile the dismissed count, or file the dismissed count as part of the information (Penal Code § 739).

Front 76

What happens if the magistrate grants a motion to suppress and then holds a defendant to answer on at least one count?

Back 76

The deputy may

1. give notice of a motion to reinstate the dismissed count (Penal Code § 871.5),

2. refile the dismissed count, or

3. file the dismissed count as part of the information (Penal Code § 739).

Front 77

What happens if a motion to suppress is granted and the defendant is held to answer on all counts?

Back 77

The ruling on the motion is binding, unless the people request a special hearing in the trial court pursuant to Penal Code section 1538.5(j). The people cannot file a motion to reinstate the dismissed count, since the defendant was held to answer on all counts.

Front 78

What must the people do to obtain review of a suppression order?

Back 78

The magistrate's decision can be reviewed by the superior court. The people must:

1. Give notice;
2. mark the excluded exhibits and leave it with the clerk;
3. deliver the case file to a supervisor within two business days. They will ensure that the moving papers are filed with the information.

Front 79

What can the people do if a 1538.5 motion is granted twice and the case is dismissed twice?

Back 79

A motion to reinstate the dismissed count is still available. People v. Toney (2004) 32 Cal.4th 228.

Front 80

Can the defendant cross-examine on search and seizure issues during a preliminary hearing?

Back 80

No. Where no suppression motion is made at the preliminary hearing, cross examination questioning on search and seizure matters is

irrelevant and may be prohibited. People v. Williams (1989) 213 Cal.App.3d 1186.

Front 81

If a 1538.5 motion is granted, can you re-file and have the motion heard in front of a different judge?

Back 81

No. If a 1538.5 motion is granted and the case later re-filed, the motion must be heard before the same judge. 1538.5(p). Filing a 170.6 motion to remove the judge is improper. People v Superior Court (Jiminez) (2002) 28 C.4th 798.

Front 82

A motion to suppress under 1538.5 is denied at a preliminary hearing. A motion to dismiss the information under Penal Code section 995 is later granted. Can the people file a 170.6 to prevent the same judge from re-hearing the 995 motion?

Back 82

Yes. People v. Superior Court (Cooper) (2003) 114 Cal. App. 4th 713.

Front 83

What happens when the issue of defendant's mental competence arises prior to or at a preliminary hearing in Los Angeles County?

Back 83

The Court shall transfer the defendant to Dept. 95 where the issue of the defendant's mental competence shall be determined. Los Angeles Superior Court Rule 2.5(g). Upon transfer of a matter to Dept. 95, the preliminary hearing deputy shall immediately call and notify the psychiatric section. LPM 16.02.02.

Front 84

Are dismissals under Penal Code section 995 for prior incompetence subject to the two dismissal rule?

Back 84

No. Pen. Code section 1387(c).

Front 85

Can an indigent defendant obtain an investigator prior to a preliminary hearing?

Back 85

Yes. An indigent defendant, upon proper showing, is entitled to the appointment of an investigator at public expense to prepare for the preliminary hearing. Puett v. Superior Court (1979) 96 Cal.App.3d 936.

Front 86

When must the information be filed?

Back 86

The information must be filed within 15 days of the order holding the defendant to answer. Penal Code section 1382(a)(1); People v. Trujillo (1977) 67 Cal.App.3d 547.

Front 87

What offenses may be included in the information?

Back 87

Prosecution may include in the information any offense shown by the evidence arising from the same transaction which is the basis for a commitment on a related offense. Penal Code section 739.

Front 88

A defendant is held to answer for rape. During the preliminary hearing, evidence is presented that the defendant also committed an uncharged crime, felony battery. Can the information include this charge?

Back 88

Yes. People v. Manning (1982) 133 Cal.App.3d 159; See also People v. Superior Court (Jurado) (1992) 4 Cal.App.4th 1217 [ok to add special circumstance where defendant only HTA for murder].

Front 89

When the magistrate makes a factual finding that a defendant did not commit a felony count, can the people file that charge in the information with any remaining felony counts?

Back 89

No. Factual findings may not be ignored when filing the information. Jones v. Superior Court (1971) 4 Cal.3d 660.

Front 90

Where a magistrate holds the defendant to answer on one count and dismisses another without any express findings, has the court made a legal or factual finding?

Back 90

The court has made a legal conclusion, not a factual finding. The People may charge the dismissed count in the information. People v. Lipinski (1976) 65 Cal.App.3d 566.

Front 91

The court at a preliminary hearing for murder makes a finding that manslaughter is the appropriate charge. Can the people file an information charging first or second degree murder?

Back 91

Yes. This is a legal finding, rather than a factual finding, that allows the people to file first or second degree murder charges. People v. Superior Court (Henderson) (1986) 178 Cal.App.3d 516.

Front 92

What are the people's options if the court makes legal findings adverse to the People's case?

Back 92

The people may

1. refile

2. file the charge in the information under Penal Code section 739, or

3. file a motion to reinstate the complaint under Penal Code section 871.5.

People v. Slaughter (1984) 35 Cal.3d 629; People v. Luna

(1983) 140 Cal.App.3d 788.

Front 93

If the people waive a preliminary hearing, may charges may be added to the information not already alleged in the complaint?

Back 93

No. People v. Winters (1990) 221 Cal.App.3d 997.

Front 94

Can the district attorney file the same charges twice?

Back 94

Yes. Pen. Code section 1387.

Front 95

Are there any situations in which the district attorney can file the same charges three times?

Back 95

Yes. If the offense is a a violent felony within Penal Code section 667.5 and the

prosecution has suffered two dismissals, either of which was due to excusable neglect but did not involve bad faith, the prosecutor may file a third time. Penal Code section 1387.1(a). Excusable neglect is error on the part of the court, prosecution, law enforcement or witnesses. Penal Code section 1387.1 (b).

Front 96

A district attorney files a violent felony which is dismissed twice. The second time it was dismissed because the prosecutor could not locate the necessary witnesses. Can it be filed a third time?

Back 96

Yes. A Prosecutor’s good faith effort to find witnesses is excusable neglect. People v Massey (2000) 79 C.A.4th 204.

Front 97

Does the dismissal of a count at the preliminary hearing count as a dismissal if that count is subsequently filed in the information?

Back 97

Generally, no.

Front 98

The complaint alleged murder and insurance fraud. The murder count was not held to answer. The DDA indicted the defendant for murder and insurance fraud and dismissed the information containing the murder and insurance fraud counts. Was the court's dismissal of the murder at the preliminary hearing a 1387 dismissal?

Back 98

No. People v. Superior Court (Martinez) (1993) 19 Cal.App.4th 738.

Front 99

Does a dismissal of an information by the prosecution count towards the "two charges" rule where an indictment is filed based on the same subject matter as the dismissed complaint, information, or indictment?

Back 99

No. Pen. Code section 1387(c); People v. Superior Court (Martinez) (1993) 19 Cal.App.4th 738.

Front 100

A 995 motion is granted. Is this dismissal a bar for refiling?

Back 100

Yes. However, there are seven exceptions.

Front 101

A prior dismissal is not a bar to refiling if a 995 motion was granted for any of which seven reasons?

Back 101

1. Present insanity of defendant;

2. Lack of counsel after defendant elects to represent him or herself;

3. Ineffective assistance of counsel;

4. Conflict of interest of defense counsel;

5. Violation of time deadlines based upon unavailability of defense counsel;

6. Defendant’s motion to withdraw a waiver of the preliminary hearing; Penal Code 1387(c).

7. The 995 motion was granted after dismissal by the magistrate of the action pursuant to Penal Code section 871 and was recharged pursuant to Penal Code section 739. Penal Code sections and 1387(c)(3)

Front 102

Defendant moves to dismiss pursuant to Penal Code section 995 on the grounds that defendant is insane. Is this dismissal a bar to refiling?

Back 102

No.

Front 103

A 995 motion is granted after defendant moved successfully to withdraw a waiver of the preliminary hearing. Is this a bar to refiling?

Back 103

No. Pen. Code section 1387(c).

Front 104

Is a prior dismissal a bar to refiling if a 995 motion was granted due to problems with defendant's counsel?

Back 104

No. A prior dismissal is not a bar to refiling if a 995 motion is granted due to:

1. lack of counsel after defendant elects to represent himself;

2. Lack of counsel after defendant elects to represent him or herself;
3. Ineffective assistance of counsel;
4. Conflict of interest of defense counsel; and
5. Violation of time deadlines based upon unavailability of defense counsel.

Front 105

If a preliminary hearing is not held within 60 days of the arraignment and the case is dismissed, is this dismissal a bar to refiling?

Back 105

No. A prior dismissal is not a bar to refiling if good cause is shown why the preliminary hearing was not held within 60 days of the arraignment or plea. Penal Code section 1387(b)(1).

Front 106

New evidence is discovered after a second dismissal. Can the people refile the case?

Back 106

Yes. A prior dismissal is not a bar if the court finds that substantial new evidence has been discovered, so long as the new evidence is discovered after the second dismissal. People v. Horning (1984) 150 Cal.App.3d 1015.

Front 107

A case is dismissed when an intimidated witness fails to appear and the people are unable to proceed. Can the people refile the case?

Back 107

Yes. A prior dismissal is not a bar if the court finds the prior termination was the result of the direct intimidation of a witness. Penal Code 1387(a)(2).

Front 108

A case is dismissed when a victim of spousal abuse fails to appear. Can the people refile the case?

Back 108

Yes. A prior dismissal is not a bar if the court finds that the termination occurred when the personally served victim domestic violence fails to appear, and the refiling is within six months of dismissal. Pen. Code section 1387(a)(3).

Front 109

Is a dismissal of a duplicative complaint a "dismisal" under Penal Code section 1387?

Back 109

No. Dismissal of a duplicate complaint, filed inadvertently, is not a dismissal under Penal Code section 1387. People v. Elias (1990) 218 Cal.App.3d 1161. Similarly, dismissal of misdemeanor complaint “in the interests of justice” upon the filing of a duplicative felony complaint is not a “dismissal” under 1387. People v. Bohlen (1992) 4 Cal.App.4th 400.

Front 110

What happens if all of the felony counts in a complaint are dismissed but a misdemeanor count is held to answer?

Back 110

The court will arraign the defendant on the misdemeanor and handle it the same as any other misdemeanor charge. The local city attorney or the DA will prosecute the case, depending on the jurisdiction. Montgomery v. Superior Court of Solano County (1975)

Front 111

If a defendant is out on bail, and her case has been dismissed but will be refiled, does she have to post bail a second time?

Back 111

No. If the charges are to be refiled within 15 days and defendant has been on bail, the defendant is entitled to apply the original bail to the new charges. Penal Code section 1303.

Front 112

If a defendant has been released on her own recognizance, and her case has been dismissed but will be refiled, does she have to return to custody?

Back 112

No. Defendant is entitled to “OR” status unless conditions are shown to have changed. Penal Code section 1388(c).

The prosecution must send a letter to the defendant and defense counsel stating the date, time, and place of arraignment, unless defendant was in court when the case was refiled. Penal Code section 1388(a).

Front 113

What is a 995 motion?

Back 113

A motion to set aside the indictment or information. Pen. Code section 995.

An information can be set aside if:
1. the defendant was not legally committed before the filing of the information; or
2. the defendant had been committed without probable cause.

Front 114

What is a 995a proceeding?

Back 114

The court, on motion of the People, can conduct further proceedings to correct those minor errors of omission, ambiguity or technical defect in the information which can be corrected expeditiously and without rehearing a substantial portion of the evidence.

Front 115

How are 995a proceedings conducted?

Back 115

The court can remand the cause to the magistrate that held the defendant to answer, or sit as a magistrate and conduct further proceedings. Pen. Code section 995a(b)(1). Testimony may be taken. Pen. Code section 995a(b)(3).

Front 116

How many times can the people correct the information by using a 995a proceeding?

Back 116

Just once. Only one proceeding under Penal Code 995a is permitted for each filed information. Penal Code 995a(b)(3).

Front 117

What kind of errors can be corrected in a 995a proceeding?

Back 117

Only minor errors. A minor omission is one which is comparatively unimportant when considered in relation to the balance of the evidence required in order to hold the accused to answer. Caple v. Superior Court (1987) 195 Cal.App.3d 594.

An error in judgement cannot be corrected. Tharp v. Superior Court (1984) 154 Cal.App.3d 215.

Front 118

Drugs are found in the car where defendant is a passenger, but the prosecution fails to establish that the defendant owns the car. Can this error be corrected in a 995a proceeding?

Back 118

Yes. Caple v. Superior Court (1987) 195 Cal.App.3d 594.

Front 119

Defendant brings a 995 motion on the grounds that the magistrate incorrectly relied on the inevitable discovery theory to admit evidence. Can the people use a 995a proceeding to have the magistrate rule on other possible theories?

Back 119

No. This is not a minor error correctable under 995a. Tharp v. Superior Court (1984) 162 Cal.App.3d 102.

Front 120

A court erroneously sustains objections to defense questions. The defense brings a 995 motion, which is granted. Can the prosecution correct this error using a 995a proceeding?

Back 120

No. Dismissal was proper. Tharp v. Superior Court (1984) 162 Cal.App.3d 102.

Front 121

What is a motion to reinstate the complaint?

Back 121

When an action is dismissed by a magistrate at a preliminary hearing pursuant to certain sections of the penal code, the people may make a motion to compel the magistrate to reinstate the complaint or a portion thereof, and to reinstate the custodial status of the defendant under the same terms and conditions as when the defendant last appeared before the magistrate. Pen. Code § 871.5(a).

Front 122

When must a motion to reinstate the complaint be made?

Back 122

Notice of motion to compel the magistrate to reinstate the complaint and to reinstate defendant’s custodial status must be made in the superior court within 15 days of the dismissal.

Front 123

Is it necessary to hear the people's motion to reinstate the complaint within 15 days in order for it to be procedurally proper?

Back 123

No. The 15-day rule is satisfied if notice is given within 15 days. There is no need for a hearing within 15 days. People v. Dianda (1986) 178 Cal.App.3d 174.

Front 124

What happens if the people do not meet the 15 day deadline to bring a motion to reinstate the complaint?

Back 124

§ 871.5 time limits are mandatory. Failure to substantially comply leaves the trial court without jurisdiction to hear the motion. People v. Dethloff (1992) 9 Cal.App.4th 620.

Front 125

What are the grounds for a motion to reinstate the complaint?

Back 125

The only ground for the motion is that as a matter of law the magistrate erroneously dismissed the action or a portion thereof. Penal Code § 871.5(b).

Front 126

What material does the Superior Court review when ruling on a motion to reinstate the complaint?

Back 126

The superior court reviews the motion purely on the basis of the record before the magistrate. The magistrate’s express findings of fact are binding. Where no findings of fact have been made, the superior court reviews the dismissal as a question of law. People v. Slaughter (1984) 35 Cal.3d 629.

Front 127

What can the people do if the Superior Court denies a motion to reinstate the complaint?

Back 127

Nothing. If the motion is decide adversely to the People, the prosecution may not refile the case. Penal Code § 871.5(c).

Front 128

What is Penal Code § 1238?

Back 128

§1238 of the Penal Code designates the decisions in a criminal prosecution from which the People can appeal.

Front 129

Can the people appeal from an order denying reinstatement of the complaint?

Back 129

Yes. Penal Code § 1238(a)(9).

Front 130

What is Penal Code § 999a?

Back 130

It allows the defendant to petition the court of appeal for a writ of prohibition, on the grounds that the indictment or information was not supported by probable cause or that the court abused its discretion in a 995a proceeding. It must be filed in the court of appeal within 15 days of denial of a § 995 motion.

Front 131

How can the defendant challenge the granting of a motion to reinstate the complaint?

Back 131

By bringing a motion to set aside the information or a petition for a writ of prohibition. Pen. Code §§ 995, 999a.

Front 132

What happens when a motion to reinstate the complaint is granted?

Back 132

The Superior Court returns the case to the preliminary hearing magistrate. Generally, at that remains for the magistrate to do is hold the defendant to answer.

Front 133

Can a motion to reinstate the complaint be granted on the grounds that the magistrate incorrectly assessed witness credibility?

Back 133

No. § 871.5 extends only to erroneous legal rulings, not to findings of fact such as witness credibility. People v. Luna (1983) 140 Cal.App.3d 788; Vlick v. Superior Court (1982) 128 Cal.App.3d 992; People v. Arbacaukas (2004) 123 C.A. 4th 502.

Front 134

Can a motion to reinstate the complaint be granted on the grounds that evidence was erroneously suppressed pursuant to Penal Code § 1538.5?

Back 134

Yes. This can be done despite § 1538.5(p), which prohibits the refiling of dismissed charges if the defendant’s suppression motion “has been granted twice.” People v. Toney (2004)

Front 135

Is a motion to reinstate the complaint available after the second dismissal of the complaint?

Back 135

Yes. It is not barred by the "second dismissal is final" rule of Penal Code § 1387. People v. Mayo (1986) 185 Cal.App.3d 389.

Front 136

Can the people bring a motion to reinstate the complaint if the court reduces a wobbler to a misdemeanor?

Back 136

No. People v. Williams (2005) 35 Cal.4th 817.

Front 137

What are the people's three options after a first dismissal in which some, but not all, of the charges are held to answer?

Back 137

The people may:

1. seek to reinstate the complaint as to the dismissed counts;

2. refile the dismissed counts; or

3. include the dismissed counts in the information on the grounds that it was "shown by the evidence taken before the magistrate" pursuant to Penal Code § 739.

Front 138

What is a Cruz Waiver?

Back 138

A Cruz Waiver notifies the defendant that if he fails to appear at the sentencing or picks up a new case in the interim, the prosecution will not be bound by the disposition originally entered into. Instead, the defendant can be sentenced up to the maximum on the count(s) to which he pled guilty or no contest and the allegation(s) and/or enhancement(s) he admitted.

Front 139

When should a Cruz waiver be taken?

Back 139

When defendant enters a plea but his sentenced is postponed to another date.

Front 140

What is an Arbuckle Waiver?

Back 140

It allows defendant to enter a plea before one bench officer and be sentenced by another.

Front 141

When should Arbuckle Waiver be taken?

Back 141

On all cases involving Prop 36, deferred entry of judgment, or the alternative sentencing court. Also ensure that the defendant waives time for sentencing. Document both waivers in the file.