What Happens if I Lose at My Preliminary Hearing?

[i] Accommodative offers are extended at the beginning of a case to encourage early case resolution, conserve D.A. and courtroom manpower, and reward early acceptance of responsibility.

[ii] Penal Code §866(b). See also Rideout v. Superior Court (1967) 67 Cal.2d 471, 474.

[iii] Penal Code §995(a)(2).

[iv] Penal Code §995(a)(2)(B): “the … information shall be set aside … if … the defendant had been committed without reasonable or probable cause.” Note: The standard of “reasonable or probable cause” sought during the preliminary stage is the same “reasonable or probable cause” standard that police must establish before enacting a lawful arrest. Williams v. Superior Court (1969) 71 Cal.2d 1144, 1147. Accordingly, cases that hold that a police officer did not have probable cause to make an arrest can be used to help show that the evidence presented during a preliminary hearing was insufficient to support a reasonable inference of guilt.

[v] See, for instance, Penal Code §1538.5. (Additionally, if the only evidence of a defendant’s alleged guilt was seized in violation of his Fourth Amendment rights, then the magistrate’s finding will be overturned on review. People v. Sherwin (2000) 98 Cal.Rptr.2d 888, 892; Jackson v. Superior Court (1977) 74 Cal.App.3d 361, 369. Inadmissible evidence will be disregarded by the judge who reviews the propriety of the magistrate’s finding. However, at the preliminary hearing stage, some exceptions are made for evidence that would otherwise be inadmissible — for instance, hearsay evidence received from a qualified peace officer (Penal Code §872(b)) or uncorroborated testimony received from an accomplice. Arteaga v. Superior Court (2015) 233 Cal.App.4^th 851, 867. Note: Defense counsel must object to the introduction of inadmissible evidence during the preliminary hearing; otherwise, the objection will be deemed waived at the time the magistrate’s finding is reviewed. People v. Anderson (1989) 210 Cal.App.3d.24, 28. Penal Code §996.

[vi] For instance, the prosecution could not establish the crime of child abduction because the element of “physical custody” could not be proven. Even though Child Support Services was authorized to “supervise” the conduct of the allegedly abducted children, the agency did not have “physical custody” of the children, as specifically required in the child abduction statute. Barber v. Superior Court (1991) 1 Cal.App.4th 793, 795. But elements can be proven by circumstantial evidence. For example, the prosecution did establish the crime of receipt of stolen property where the element of “knowledge that the property was stolen” was in dispute. Even though the defendant did not outright admit to knowing that the property was stolen when he received it, there were enough circumstances for the magistrate’s inference of guilt to be reasonable. Williams v. Superior Court (1969) 71 Cal.2d 1144 , 1150. Note: a prior conviction need not be proven at the preliminary hearing when the prior conviction is not an element of the alleged offense. People v. Robinson (2004) 18 Cal.Rprtr.3d 744, 747-748. See also Penal Code §§1025(d), 1158.

[vii] People v. Johnson (1980) 26 Cal.3d 557, 577. However, if the whole record is taken into account and the evidence is susceptible to two reasonable interpretations – one interpretation pointing to guilt and the other to innocence – then the interpretation supporting guilt will be upheld by a reviewing court because “[a]n information will not be set aside … if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it.” [Citations omitted.] People v. Superior Court (Bolden) (1989) 209 Cal.3d 1109, 1113, 1114.

[viii] For instance, see Malleck v. Superior Court (1956) 142 Cal.App.2d 396, 398 [a person’s presence at the scene of a crime, without more, is not enough to prove that he was a perpetrator]; Birt v. Superior Court (1973) 34 Cal.App.3d 934, 938 [a person’s fingerprint found inside a rental vehicle used during a burglary is not enough to establish that the person was a participant in the burglary].

[ix] Note: Insufficient evidence and procedural defects are not mutually exclusive. Either, or both simultaneously, can serve as the basis for challenging a magistrate’s finding.

[x] Penal Code §995(a)(2)(A).

[xi] Penal Code §866(a). People v. Erwin (1993) 20 Cal.App.4^th 1542, 1551.

[xii] Penal Code §17(b)(5). Hartman v. Superior Court (1982) 135 Cal.App.3d 205, 208.

[xiii] Gallaher v. Superior Court (1980) 103 Cal.App.3d 666, 672. [If a prosecution witness testifies to facts that go to the issue of guilt or innocence, defense counsel may cross-examine that witness regarding any relevant events that preceded, took place simultaneously — such as the full extent of a partial conversation — or occurred after the alleged crime.] Further, when denied the right to cross-examination, a defendant is entitled to have the direct testimony stricken from the record. Gallaher at 673. But a magistrate can restrict cross-examination questions that delve into a witness’s credibility because such questions go the weight of the testimony, not to the issue of innocence or guilt. People v. Stone (1983) 139 Cal.3d 216, 223.

[xiv] Penal Code §1368. A defendant who, because of his incompetence, is unable to understand the nature of the charges against him or the proceedings that are occurring on his behalf, and who is unable to assist in his own defense is effectively not “present” at his preliminary hearing. Proceeding with the preliminary hearing while the defendant is incompetent effectively deprives him of his right to be present at his preliminary hearing and to be assisted by defense counsel. Given the magnitude of such constitutional deprivations, the appropriate remedy is dismissal. Bayramoglu v. Superior Court (1981) 124 Cal.App.3d 718, 728; People v. Duncan (2000) 93 Cal.Rptr.3d 173, 177. Note: If a defendant is found to have been incompetent at the time of his preliminary hearing, then testimony from that hearing will be deemed inadmissible at future proceedings. Stevenson v. Superior Court (1979) 91 Cal.App.3d 925, 930.

[xv] However, if the magistrate grants your motion, the prosecution may elect to file a motion that would force the magistrate to reverse its finding and reinstate any charges that were dismissed. This remedy is not available to the prosecution if the prosecution is still able to file an information via Penal Code §739 despite the dismissed charge. Penal Code §871.5(a). One benefit of an §871.5 motion to the prosecution is that it can eliminate a second dismissal that would normally permanently bar the prosecution from re-filing a dismissed charge(s) for a third time. Ramos v. Superior Court (1982) 32 Cal.3d 26, 35.

[xvi] A motion challenging a magistrate’s finding, known as a Penal Code §995 motion, is typically made within 60 calendar days after a felony defendant is arraigned on the information in the trial court. Penal Code §1510. Additionally, challenging the magistrate’s finding on the basis that the magistrate deprived the defendant of a substantial right can be made by way of a common-law (i.e., non-statutory) motion to dismiss, which is desirable when the deprivation of the substantial right is not obvious from the transcript. People v. Crudgington (1979) 88 Cal.3d 295, 300. Note: The basis of the §995 motion or common-law motion to dismiss should be objected to during the preliminary hearing. If not, the objection is effectively waived, and a reviewing court cannot consider it. People v. Rosales (1984) 153 Cal.App.3d 353, 364.

[xvii] The reviewing judge will also serve as the trial judge and will preside over the defendant’s matter until it comes to its ultimate conclusion, barring any appeals.  People v. Laiwa (1983) 34 Cal.3d 711, 718. See also Rideout v. Superior Court (1967) 67 Cal.2d 471, 474.

[xviii] Penal Code §869(e); Stanton v. Superior Court (1987) 193 Cal.App.3d 265, 270; People v. Sahagun (1979) 89 Cal.3d 1, 20 [Upon reviewing the magistrate’s finding, preliminary hearing witnesses will not be recalled and no new evidence may be introduced].

[xix] Penal Code §995(a)(2).

[xx] Penal Code §1238(a)(1), but prosecutor may also seek appellate review via a writ of mandate when the matter must be resolved more expeditiously. People v. Bolden (1989) 209 Cal.3d 1109, 1112.

[xxi] People v. Franc (1990) 218 Cal.3d 588, 592. If the prosecution elects to file an information, it must do so within 15 days from the magistrate’s holding order. Penal Code §§739, 1382(a)(1).

[xxii] Still, the prosecution’s ability to refile dismissed charges is not limitless. The prosecution is limited to re-charging an offense only twice after it has been dismissed. After that, the prosecution is barred from re-filing the same, dismissed charges again, absent extraordinary circumstances. Penal Code §§1387 1387.1. People v. Juarez (2016) 62 Cal.4^th 1164, 1171; Dunn v. Superior Court (1984) 159 Cal.3d 1110, 1115. The prosecution may appeal a dismissed charge and, simultaneously, refile it. In that instance, the prosecution will have a decision to make at the time of the arraignment on the information of the re-filed charge: either proceed on the information or allow the appeal to run its course. Once at this stage, the prosecution cannot do both. People v. Franc (1990) 218 Cal.3d 588, 592. When only some of the counts in a complaint are found inadequate, but a holding order is issued on the remaining counts, a third option becomes available: file an information anyway, despite the dismissed charges. Penal Code §739. Alternatively, if the disputed defect that forms the basis of the 995 motion is minor, technical, or clerical, it can be corrected without the need to dismiss the information. Penal Code §995a(b)(1). People v. Meza (2011) 198 Cal.App. 4^th 468, 474.  Ramos v. Superior Court (1982) 32 Cal.3d 26, 34.

[xxiii] These findings are known as “factual findings,” and are made by the magistrate at the conclusion of the preliminary hearing. Factual findings are evidentiary determinations made by the magistrate that cannot be disturbed by a reviewing court and can concern facts specific to a case as well as the credibility of a given witness. Some examples: If a magistrate makes a factual finding that federal law enforcement agents intentionally pierced the confidentiality of the attorney-client privilege by eavesdropping – a finding that was fatal to the prosecution’s case – that finding cannot not be disturbed on review. People v. Shrier (2010) 190 Cal.App.4^th 400, 412, 415. If a lower court determines that a witness is not credible, then a reviewing court must honor that factual finding and, in its own analysis, also ascribe little persuasive value to that witness’s testimony. Cooley v. Superior Court (Marentez) (2003) 127 Cal.Rptr.2d 177, 199-200. If a magistrate makes a factual finding that an alleged sexual assault victim gave consent, then the prosecutor may file an information alleging statutory rape, but not forcible rape. Jones v. Superior Court (1971) 4 Cal.3d 660, 666. If a magistrate makes a factual finding that none of the alleged prohibited sexual acts occurred (such as oral copulation or sodomy with a minor), then an information alleging such acts will ultimately be dismissed. Jones at 666.

[xxiv] Jones at 666.

[xxv] Though you’ll have to be quick about it. The appeal, known as a writ of prohibition, must be filed within 15 calendar days if the basis of the 995 motion was that a commitment order was issued without probable cause. Penal Code §999a. If, instead, the defense alleges that the commitment order was improper because the Court failed to honor a procedural safeguard, then the appeal may be made within 60 calendar days of arraignment on the information. Penal Code §1510. (Alternatively, a defendant may appeal a denied 995 motion well beyond 60 days if he was unaware of the appealable defect or had no opportunity to raise it. Penal Code §1510.) Though these timeframes are tight, timely filing of an appeal is advantageous to the defendant. A writ of prohibition is much harder to win if filed after trial because, at that point, the defendant must prove – after he has been convicted by a jury – that the magistrate’s error at the preliminary hearing affected the outcome of his case and ultimately deprived him of a fair trial. People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529. Note: When the challenge to the magistrate’s order was made by a common-law (i.e., non-statutory) motion to dismiss, the 15 and 60-day timeframes do not apply; rather, there is no statutory time limit. Harris v. Superior Court (2014) 225 Cal.App.4^th 1129, 1145. A writ of prohibition does not automatically stay the proceedings; therefore, it would be prudent to also apply for a writ of supersedeas. See Cal. Rules of Court 8.112, 8.116, 8.486.