Preliminary Hearing

A preliminary hearing or preliminary examination, often abbreviated as prelim, PX, or PH, is a hearing in felony cases in which a magistrate decides if there is enough evidence that the case can go to trial.

Hearsay under Prop 115

Under Penal Code section 872:

(b) Notwithstanding Section 1200 of the Evidence Code, the finding of probable cause may be based in whole or in part upon the sworn testimony of a law enforcement officer or honorably retired law enforcement officer relating the statements of declarants made out of court offered for the truth of the matter asserted. An honorably retired law enforcement officer may only relate statements of declarants made out of court and offered for the truth of the matter asserted that were made when the honorably retired officer was an active law enforcement officer. Any law enforcement officer or honorably retired law enforcement officer testifying as to hearsay statements shall either have five years of law enforcement experience or have completed a training course certified by the Commission on Peace Officer Standards and Training that includes training in the investigation and reporting of cases and testifying at preliminary hearings.

(c) For purposes of subdivision (b), a law enforcement officer is any officer or agent employed by a federal, state, or local government agency to whom all of the following apply:

(1) Has either five years of law enforcement experience or who has completed a training course certified by the Commission on Peace Officer Standards and Training that includes training in the investigation and reporting of cases and testifying at preliminary hearings.

(2) Whose primary responsibility is the enforcement of any law, the detection and apprehension of persons who have violated any law, or the investigation and preparation for prosecution of cases involving violation of laws.

So the requirements are 1) five years of law enforcement experience or 2) completing a POST-certified course that includes training in the investigation and reporting of cases and testifying at preliminary hearings. If an officer doesn’t have five years experience, which happens a lot in this county, then they need to testify to the course using the exact words “training in the investigation and reporting of cases and testifying at preliminary hearings,” and the court was POST-Certified. An officer just can’t say it was a Prop 115 course. Hollowell v. Superior Court (1992) 3 Cal.App.4th 391, held the foundation wasn’t met when the officer said it was a Prop 115 course. The Hollowell Court said: “While the inference might be made that the training concerned ‘the investigation and reporting of cases and testifying at a preliminary hearing,’ this testimony does not establish that the course had been certified by POST.” (Hollowell v. Superior Court (1992) 3 Cal.App.4th 391, 395.)

A correctional officer with more than 5 years of experience is qualified to testify as to hearsay at a preliminary hearing. (People v. Silver (1995) 35 Cal.App.4th 1023, 1027–1028.)

Furthermore, officers testifying as to hearsay must have some “personal involvement” with the case. (People v. Silver (1995) 35 Cal.App.4th 1023, 1026.)

Whitman v. Superior Court (1991) 54 Cal.3d 1063, 1073, has a lengthy discussion about “reader” officers.

When officers are testifying as to hearsay about experts, Hosek v. Superior Court ( ) 10 Cal.App.4th 605 and Curry v. Superior Court (2013) 217 Cal.App.4th 580.) There’s usually a checklist of foundations required for an officer to testify as to scientific evidence.

It’s also fair to question the officer about the credibility of declarants. The hearsay provisions of 872 contemplate “that the testifying officer will be capable of using his or her experience and expertise to assess the circumstances under which the statement is made and to accurately describe those circumstances.” (Whitman v. Superior Court (1991) 54 Cal.3d 1063, 1074.)

And many many cases say PC872(b) only allows for one layer of hearsay. (Shannon v. Superior Court (1992) 5 Cal.App.4th 767; Tu v. Superior Court (1992) 5 Cal.App.4th 1617; People v. Wimberly (1992) 5 Cal.App.4th 439; Monetz v. Superior Court (1992) 4 Cal.App.4th 577.)

Also, if you’re running a 1538.5 simultaneously with the preliminary hearing, the hearsay exception under PC872 for PX doesn’t apply to the 1538.5. (People v. Hawkins (2012) 211 Cal.App.4th 194, 199.)

Hearsay exception under PC872 for PX doesn’t apply to concurrent probation hearing. (See People v. Best (1997) 54 Cal.App.4th 41, 46.)

Prop 115 hearsay exception does apply to defense witness and defendant's statements. (Nienhouse v. Superior Court (1996) 42 Cal.App.4th 83.)

Confrontation

People v. Gonzalez (2012) 54 Cal.4th 1234, 1267.

Whitman v. Superior Court (1991) 54 Cal.3d 1063.

People v. Adams (1993) 19 Cal.App.4th 412, 432.

People v. Johns (1997) 56 Cal.App.4th 550, 554.

Penal Code 1347

Defense witnesses

Defendant

A defendant who takes the stand to testify does not waive the privilege against self-incrimination except as to matters within the scope **742 of relevant cross-examination. (People v. Tealer, 48 Cal.App.3d 598, 604, 122 Cal.Rptr. 144; see Evid. Code, ss 761, 772(d); Witkin, Cal. Evidence (2d ed. 1966) ss 911, 1204, pp. 845, 1112.) Thus, if the accused testifies only as to the facts concerning his or her receipt of a request for restitution, the prosecutor could not cross-examine the accused with respect to any other matter. People v. Crudgington (1979) 88 Cal.App.3d 295, 302 [151 Cal.Rptr. 737, 741–742]

Kicking people out of the courtroom

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.

Right to a public trial

Separate from whether witnesses can be excluded is the issue of non-witnesses attending. The defendant has a statutory right under PC868 to a public preliminary examination. (People v. Pompa-Ortiz (1980) 27 Cal.3d 519.) It is a substantial right, as important as the right to counsel, to cross-examine, or to present a defense, so denial of that right is an illegal commitment and subject to a PC995 motion. (Id. at p. 526)

Stroud v. Superior Court (2000) 23 Cal.4th 952 fn. 4.

Discovery

Preliminary Hearing is not for discovery. (Pen. Code 866, subd. (b); Curry v. Superior Court (2013) 217 Cal.App.4th 580; Whitman v. Superior Court (1991) 54 Cal.3d 1063, 1080-1081.)

What needs to be proven up at PX

The People must prove and the court must find sufficient cause for certain enhancements, such as: • Use of a weapon. (Pen. Code, § 12022.53.) • Great bodily injury. (Pen. Code, § 12022.7.) • 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].)

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).) • 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”].)

995 vs review on appeal

People v. Matthews (1986) 183 Cal.App.3d 458 Moon v. Superior Court (2005) 134 Cal.App.4th 152 People v. Coleman (1988) 46 Cal.3d 749

Thus, a writ of prohibition is preferable to review on appeal. (People v. Anderson (2015) 234 Cal.App.4th 1411. Serrato v. Superior Court (1978) 76 Cal.App.3d 459.

Shackling

“[W]e hold that, as at trial, shackling should not be employed at a preliminary hearing absent some showing of necessity for their use. Nevertheless, while the dangers of unwarranted shackling at the preliminary hearing are real, they are not as substantial as those presented during trial. Therefore, a lesser showing than that required at trial is appropriate.” (People v. Fierro (1991) 1 Cal.4th 173, 220.)

Date and time of hearing

People v. Alvarez 208 Cal.App.3d 567 (1989)

In General Penal Code § 859b is supplementary to and a construction of the constitutional right to a speedy trial reflecting legislative intent to prevent prolonged incarceration. (People v. Luu, 209 Cal. App. 3d 1399, 258 Cal. Rptr. 10 (6th Dist. 1989).) Trailing within the Period No good cause is required to trail within the 10-day period, nor is a 1050 motion required. (Penal Code § 1050, subd. (k).) Both People and defense can trail within the period. (People v. Smith, 245 Cal. App. 4th 869, 875, 199 Cal. Rptr. 3d 922 (1st Dist. 2016).) Time Waivers Personal Time Waiver Required: Defendant must personally waive the 10/60-day clock. (People v. Figueroa, 11 Cal. App. 5th 665, 674, 218 Cal. Rptr. 3d 104 (6th Dist. 2017); People v. Kowalski, 196 Cal. App. 3d 174, 178, 242 Cal. Rptr. 32 (1st Dist. 1987); Garcia v. Superior Court of Los Angeles County, 47 Cal. App. 5th 631, 261 Cal. Rptr. 3d 161 (2d Dist. 2020), review denied, (July 29, 2020).) 10 Day Rule The Rule: The preliminary hearing shall be held within 10 court days of the defendant's arraignment, plea, or reinstatement of criminal proceedings (Penal Code § 1367). (Penal Code § 859b.) The 10 day rule is mandatory and not discretionary. (People v. Standish, 38 Cal. 4th 858, 43 Cal. Rptr. 3d 785, 135 P.3d 32 (2006), as modified, (Aug. 23, 2006).) Good Cause Continuances: The court may grant a continuance for good cause as provided in Penal Code § 1050. (Penal Code § 859b.) People's Good Cause Continuance: No Dismissal But Mandatory OR Release: Defendant entitled to OR release unless one of six exceptions apply: (1) Defendant requests continuance beyond the 10-day period. (2) Defendant charged with a capital offense: proof is evident and presumption great. (3) Necessary witness is unavailable due to Defendant's actions. (4) Counsel is ill. (5) Counsel unexpectedly engaged in a jury trial. (6) Unforeseen conflict of interest requiring the appointment of new counsel. (Penal Code § 859b, subd. (b); see People v. Standish, 38 Cal. 4th 858, 43 Cal. Rptr. 3d 785, 135 P.3d 32 (2006), as modified, (Aug. 23, 2006).) No public safety exception to OR release: Court has no discretion to deny OR release after granting People's good cause continuance beyond the initial 10-day period. No public safety exception. (People v. Standish, 38 Cal. 4th 858, 43 Cal. Rptr. 3d 785, 135 P.3d 32 (2006), as modified, (Aug. 23, 2006).) People's motion to continue is required for OR release: The OR release provision of 859b is premised on the People as the initiator of the continuance. (In re Samano, 31 Cal. App. 4th 984, 37 Cal. Rptr. 2d 491 (2d Dist. 1995).) Exceptions/ Variations to 10 Day Rule (No Dismissal/No OR Release): • Co-defendant's request to continue: A properly joined co-defendant's request for a good cause continuance shall be deemed a request by all jointly charged defendants, therefore, does not require dismissal or release OR. The magistrate has the discretion, but not the duty, to release the non-requesting defendant. (In re Samano, 31 Cal. App. 4th 984, 37 Cal. Rptr. 2d 491 (2d Dist. 1995).) • Constitutional rights v. statutory rights: When defendant asserts right to preliminary hearing within 10 days and his right to counsel, the constitutional right to counsel must prevail. (This may apply to 60 day Rule.) (People v. Kowalski, 196 Cal. App. 3d 174, 242 Cal. Rptr. 32 (1st Dist. 1987).) • Defense counsel's request to continue over defendant's objection: If defense counsel seeks reasonable time to prepare over defendant's objection, the delay is for defendant's benefit, and continuance over defendant's objection is justified. (People v. Lomax, 49 Cal. 4th 530, 112 Cal. Rptr. 3d 96, 234 P.3d 377 (2010); Lomax is a PC § 1382 case.) 60 Day Rule The Rule: The magistrate shall dismiss the complaint if the preliminary examination is set or continued more than 60 [calendar] days from the date of the arraignment … , unless the defendant personally waives.” (Penal Code § 859b.) No Good Cause Continuance: There is no good cause continuance exception to the 60-day rule. (Ramos v. Superior Court, 146 Cal. App. 4th 719, 53 Cal. Rptr. 3d 189 (2d Dist. 2007), as modified, (Feb. 5, 2007).) Mandatory: 60 day rule is mandatory. (Ramos v. Superior Court, 146 Cal. App. 4th 719, 53 Cal. Rptr. 3d 189 (2d Dist. 2007), as modified, (Feb. 5, 2007).) 859b's 60-day rule is absolute and requires dismissal of a felony complaint against a non-consenting defendant whose preliminary hearing is set or continued more than 60 calendar days after arraignment. (Ramos v. Superior Court, 146 Cal. App. 4th 719, 53 Cal. Rptr. 3d 189 (2d Dist. 2007), as modified, (Feb. 5, 2007).) Limited Time Waiver Preserves 60 Day Rule: ( People v. Superior Court of Los Angeles County, 59 Cal. App. 5th 923, 273 Cal. Rptr. 3d 777 (2d Dist. 2021), review denied, (Apr. 14, 2021); Favor v. Superior Court of San Bernardino County, 59 Cal. App. 5th 984, 993, 273 Cal. Rptr. 3d 824 (4th Dist. 2021), review denied, (Apr. 14, 2021).) Triggering Events- New Time Period The Rule: Defendant is entitled to a new clock after a triggering event. Triggering events include: arraignment or plea whichever comes later (PC § 859b); arraignment on amended complaint (Garcia v. Superior Court of Los Angeles County, 47 Cal. App. 5th 631, 261 Cal. Rptr. 3d 161 (2d Dist. 2020), review denied, (July 29, 2020)); reinstatement of criminal proceedings (Davis v. Superior Court, 18 Cal. App. 5th 1061, 1066, 227 Cal. Rptr. 3d 367 (1st Dist. 2017)). • Re-Arrest is Not a Triggering Event: A defendant, released on OR who previously waived his/her 10 day rights, who bench warrants and is re-arrested, but not rearraigned, is not entitled to a new clock because the re-arrest, absent arraignment or plea, is not a triggering event. (People v. Love, 132 Cal. App. 4th 276, 34 Cal. Rptr. 3d 6 (1st Dist. 2005).) The prior waiver remains in effect. • Prior Waivers Are Ineffective: Waivers taken prior to the reinstatement of criminal proceedings are ineffective. (Davis v. Superior Court, 18 Cal. App. 5th 1061, 1066, 227 Cal. Rptr. 3d 367 (1st Dist. 2017).) Waivers taken prior to the filing of an amended complaint are ineffective. (Garcia v. Superior Court of Los Angeles County, 47 Cal. App. 5th 631, 261 Cal. Rptr. 3d 161 (2d Dist. 2020), review denied, (July 29, 2020).) • Immediate Refile per § 1387.2 is a Triggering Event: (Penal Code § 1387.2; see below.) Dismissal A non-statutory motion to dismiss premised upon the violation of the defendant's constitutional right to a speedy preliminary hearing requires an affirmative showing of prejudice. (People v. Martinez, 22 Cal. 4th 750, 94 Cal. Rptr. 2d 381, 996 P.2d 32 (2000).) Refiling If case is dismissed 859b, 861, 871 or 995, the dismissal (for purposes of the two-dismissal rule) is not a bar to prosecution if good cause is shown why the preliminary examination was not held within 60 days from the date of arraignment or plea. (Penal Code § 1387(c)(l); Ramos v. Superior Court, 146 Cal. App. 4th 719, 53 Cal. Rptr. 3d 189 (2d Dist. 2007), as modified, (Feb. 5, 2007).) Immediate Refile Upon express consent of both parties, the court may proceed on existing accusatory pleading. The action shall be deemed once terminated for purposes of Penal Code § 1387. Defendant shall be rearraigned. This is a triggering event commencing a new 10/60 day time period. (Penal Code § 1387.2.)

Both People and defense can trail within the period. (People v. Smith, 245 Cal. App. 4th 869, 875, 199 Cal. Rptr. 3d 922 (1st Dist. 2016)

Once time has been waived, no remedy for withdrawn waivers. (People v. Love (2005) 132 Cal.App.4th 276, 287.)

[“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”].