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

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.

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.

Date and time of hearing

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