Preliminary Hearing - Revision history

Sysop: /* Exclusion of witnesses */

2026-03-24T04:18:06Z

Exclusion of witnesses

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	Penal Code sections 857, 858		Penal Code sections 857, 858

			The word “person” includes a “public entity” (Evid.Code, § 175) such as the People of the State of California. Therefore, the deputy district attorney, the attorney for the People, could designate an officer or employee who was “entitled to be present.” The deputy district attorney designated Detective Rodriguez. Accordingly, Detective Rodriguez was entitled to be present. (People ex rel. Curtis v. Peters (1983) 143 Cal.App.3d 597, 192 Cal.Rptr. 70 [excluding the People's investigating officer was prejudicial error].) People v. Gonzalez (2006) 38 Cal.4th 932, 951 [44 Cal.Rptr.3d 237, 251, 135 P.3d 649, 660]

	===Right to a public trial===		===Right to a public trial===

Sysop: /* Good cause to continue past 10-days */

2025-09-16T17:48:13Z

Good cause to continue past 10-days

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	===Good cause to continue past 10-days===		===Good cause to continue past 10-days===

			Jensen v. Superior Court (2008) 160 Cal.App.4th 266, held that the prosecution exercises due diligence for an officer witness when the agency has received and accepted the subpoena, even if the officer is not ultimately given the subpoena by the agency. The decision explicitly says prosecutors are not required to personally contact every police officer served with a subpoena, though of course it’s a very good idea to do so

	===Continuance under PC1050.1===		===Continuance under PC1050.1===

Sysop: /* What needs to be proven up at PX */

2025-07-15T18:52:31Z

What needs to be proven up at PX

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	The People need not prove and the court need not make findings concerning:		The People need not prove and the court need not make findings concerning:
	• Prior convictions. (if not an element of the offense). (People v. Superior Court (Mendella), 33 Cal. 3d 754, 191 Cal. Rptr. 1, 661 P.2d 1081 (1983).)		• Prior convictions. (if not an element of the offense). (People v. Superior Court (Mendella), 33 Cal. 3d 754, 191 Cal. Rptr. 1, 661 P.2d 1081 (1983).) (if not an element of the offense or used to elevate a misdemeanor to a felony). (People v. Superior Court (Mendella), 33 Cal. 3d 754, 764, fn. 9, 191 Cal. Rptr. 1, 661 P.2d 1081 (1983) (superseded by statute on other grounds by, In re Jovan B., 6 Cal. 4th 801, 814, fn. 8, 25 Cal. Rptr. 2d 428 (Cal. 1993).)
	• A strike prior. (Miranda v. Superior Court, 38 Cal. App. 4th 902, 906, 45 Cal. Rptr. 2d 498 (2d Dist. 1995).)
			• A strike prior. (Thompson v. Superior Court (2001) 91 Cal.App.4th 144, 150 (2d Dist. 2001); Miranda v. Superior Court (1995) 38 Cal. App. 4th 902, 906, 45 Cal. Rptr. 2d 498 (2d Dist. 1995).)

	• Whether the defendant was on bail at the time of the offense. ( Penal Code § 12022.1(c) [“the enhancement allegation may be pleaded in a complaint but need not be proved at the preliminary hearing or grand jury hearing”].)		• Whether the defendant was on bail at the time of the offense. ( Penal Code § 12022.1(c) [“the enhancement allegation may be pleaded in a complaint but need not be proved at the preliminary hearing or grand jury hearing”].)

Sysop: /* Continuance under PC1050.1 */

2025-06-07T18:05:05Z

Continuance under PC1050.1

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	===Continuance under PC1050.1===		===Continuance under PC1050.1===

	Continuance past 10-days because ~~of joinder~~ of co-defendants will cause non-waiving defendant to remain in custody despite PC859b. (''In re Samano'' (1995) 31 Cal.App.4th 984.)		Continuance past 10-days because of co-defendants' granted request for continuance will cause non-waiving defendant to remain in custody despite PC859b. (''In re Samano'' (1995) 31 Cal.App.4th 984.)

	The 60-day rule requires dismissal even if there is good cause.		The 60-day rule requires dismissal even if there is good cause.

Sysop: /* Continuance under PC1050.1 */

2025-06-07T17:59:59Z

Continuance under PC1050.1

← Older revision		Revision as of 17:59, 7 June 2025
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	===Continuance under PC1050.1===		===Continuance under PC1050.1===

			Continuance past 10-days because of joinder of co-defendants will cause non-waiving defendant to remain in custody despite PC859b. (''In re Samano'' (1995) 31 Cal.App.4th 984.)

	The 60-day rule requires dismissal even if there is good cause.		The 60-day rule requires dismissal even if there is good cause.

Sysop: /* Date and time of hearing */

2025-06-07T17:30:03Z

Date and time of hearing

@@ Line 106: / Line 106: @@
 ==Date and time of hearing==
-People v. Alvarez 208 Cal.App.3d 567 (1989)
+===General time waiver===
 In General
@@ Line 154: / Line 176: @@
 [“A defendant who is released is the captain of his own fate. If he appears for the hearing on a date to which he has consented, his matter is promptly adjudicated. A defendant who chooses to abscond, however, cannot have it both ways. By failing to appear and remaining at large until rearrested, he has created his own delay.”]; People v. Perez, 229 Cal. App. 3d 302, 314, 279 Cal. Rptr. 915 (2d Dist. 1991) [discussing the Sixth Amendment speedy trial right, the court stated “the fugitive, having done all he or she can do to avoid being brought to justice, cannot then claim that denial of the right to speedy trial resulted from the ensuing delay”].
 ==Probable cause only found for misdemeanors==

Sysop: /* What needs to be proven up at PX */

2025-05-25T05:21:10Z

What needs to be proven up at PX

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	==What needs to be proven up at PX==		==What needs to be proven up at PX==

			The court must find sufficient cause for the special circumstance allegation but does not have to find the predicate was committed in the first degree. (People v. Buckley, 185 Cal. App. 3d 512, 521-522, 228 Cal. Rptr. 329 (1st Dist. 1986).)

	The People must plead and prove, and the court must find sufficient cause to believe, a special circumstance allegation is true. (Ramos v. Superior Court, 32 Cal. 3d 26, 33, 184 Cal. Rptr. 622 (Cal. 1982); Ghent v. Superior Court, 90 Cal. App. 3d 944, 954-955, 153 Cal. Rptr. 720 (1st Dist. 1979).		The People must plead and prove, and the court must find sufficient cause to believe, a special circumstance allegation is true. (Ramos v. Superior Court, 32 Cal. 3d 26, 33, 184 Cal. Rptr. 622 (Cal. 1982); Ghent v. Superior Court, 90 Cal. App. 3d 944, 954-955, 153 Cal. Rptr. 720 (1st Dist. 1979).

Sysop: /* What needs to be proven up at PX */

2025-05-25T05:19:11Z

What needs to be proven up at PX

← Older revision		Revision as of 05:19, 25 May 2025
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	==What needs to be proven up at PX==		==What needs to be proven up at PX==

			The People must plead and prove, and the court must find sufficient cause to believe, a special circumstance allegation is true. (Ramos v. Superior Court, 32 Cal. 3d 26, 33, 184 Cal. Rptr. 622 (Cal. 1982); Ghent v. Superior Court, 90 Cal. App. 3d 944, 954-955, 153 Cal. Rptr. 720 (1st Dist. 1979).

	The People must prove and the court must find sufficient cause for certain enhancements, such as:		The People must prove and the court must find sufficient cause for certain enhancements, such as:

Sysop: /* What needs to be proven up at PX */

2025-05-25T05:18:35Z

What needs to be proven up at PX

← Older revision		Revision as of 05:18, 25 May 2025
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	• Gang enhancements. (Pen. Code, § 186.22.)		• Gang enhancements. (Pen. Code, § 186.22.)
	• Priors that are elements of the offense. (People v. Baird, 12 Cal. 4th 126, 129, 130, 48 Cal. Rptr. 2d 65, 906 P.2d 1220 (1995) [felon in possession].)		• Priors that are elements of the offense. (People v. Baird, 12 Cal. 4th 126, 129, 130, 48 Cal. Rptr. 2d 65, 906 P.2d 1220 (1995) [felon in possession].)

			The People must plead and prove, and the court must find sufficient cause to believe, the defendant was convicted of a prior that is an element of the offense. (Levy v. Superior Court, 31 Cal. App. 3d 427, 429, 107 Cal. Rptr. 384 (2d Dist. 1973) [“When a prior conviction is an element of an offense sought to be charged in the information and there is no evidence of such a conviction before the magistrate, there simply is no statutory authority for including the charge in the information.”].) Some common examples are:
			• Felon in possession. (People v. Baird, 12 Cal. 4th 126, 129, 130, 48 Cal. Rptr. 2d 65, 906 P.2d 1220 (1995).)
			• Felony DUI. (People v. Casillas, 92 Cal. App. 4th 71, 184, 111 Cal. Rptr. 2d 651 (5th Dist. 2001) [“pleading and proof at the preliminary hearing of three ‘separate violations … which resulted in convictions’ of DUI is a constitutional and statutory condition precedent to prosecution and punishment of a fourth DUI as a felony”]; Dietrick v. Superior Court, 220 Cal. App. 4th 1472, 1474, 163 Cal. Rptr. 3d 789 (3d Dist. 2013) [“pleading and proof of the prior, to elevate the substantive counts to felonies, was required as a matter of due process”].)

	The People need not prove and the court need not make findings concerning:		The People need not prove and the court need not make findings concerning:
	• Prior convictions. (if not an element of the offense). (People v. Superior Court (Mendella), 33 Cal. 3d 754, 191 Cal. Rptr. 1, 661 P.2d 1081 (1983).)		• Prior convictions. (if not an element of the offense). (People v. Superior Court (Mendella), 33 Cal. 3d 754, 191 Cal. Rptr. 1, 661 P.2d 1081 (1983).)
	• A strike prior. (Miranda v. Superior Court, 38 Cal. App. 4th 902, 906, 45 Cal. Rptr. 2d 498 (2d Dist. 1995).)		• A strike prior. (Miranda v. Superior Court, 38 Cal. App. 4th 902, 906, 45 Cal. Rptr. 2d 498 (2d Dist. 1995).)
	• Whether the defendant was on bail at the time of the offense. ( Penal Code § 12022.1(c) [“the enhancement allegation may be pleaded in a complaint but need not be proved at the preliminary hearing or grand jury hearing”].)		• Whether the defendant was on bail at the time of the offense. ( Penal Code § 12022.1(c) [“the enhancement allegation may be pleaded in a complaint but need not be proved at the preliminary hearing or grand jury hearing”].)

	==995 vs review on appeal==		==995 vs review on appeal==

Sysop: /* Exclusion of witnesses */

2025-04-11T21:55:15Z

Exclusion of witnesses

← Older revision		Revision as of 21:55, 11 April 2025
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	===Exclusion of witnesses===		===Exclusion of witnesses===
	The language of the statute seems to indicate it applies only to people who are witnesses for the preliminary hearing, not to people who could be witnesses at trial or other hearings. The Judges' Benchguide states this unequivocally.		The language of the statute seems to indicate it applies only to people who are witnesses for the preliminary hearing, not to people who could be witnesses at trial or other hearings. The Judges' Benchguide states this unequivocally.

			Evidence Code section 777, subdivision (c)

			Penal Code sections 857, 858

	===Right to a public trial===		===Right to a public trial===