By Kristi Lousteau and Ronald Rose
This article appears on Page 7
An important stage in a felony criminal proceeding that is often overlooked is the preliminary hearing. The preliminary hearing is an important mechanism designed to weed out cases not weighty enough to warrant going to trial, and it allows the defense and prosecution to assess the evidence and strength of their cases in deciding whether to enter into plea bargains.
The objective of this article and accompanying self-assessment test is to familiarize practitioners and bench officers with the basic rules governing preliminary hearings. By reading the article and taking the test, readers will learn: the burden of proof in the hearings; the special evidentiary rules that apply; the important time limits that must be observed and ways to review the results of the hearings.
A preliminary hearing is where a judge or commissioner, acting as a magistrate, listens to the prosecutors' witnesses to determine if there is enough evidence to hold a defendant for trial. It applies only in felony cases. Penal Code Section 860.
Preliminary hearings are not constitutionally required. Gerstein v. Pugh, 420 U.S. 103 (1975). All that is required by the federal and state constitutions is a judicial review of cases pre-trial within 48 hours of a defendant's arrest. County of Riverside v. McLaughlin, 500 U.S. 44 (1991). That is why when the state decides to indict a defendant using a grand jury, a preliminary hearing is not required. Bowens v. Superior Court, 1 Cal.4th 36 (1991).
But, when a state provides one, the preliminary hearing constitutes a "critical stage" in the proceedings. Coleman v. Alabama, 399 U.S. 1 (1970). This means that, among other things, indigent defendants have the right to a court-appointed lawyer. Bogart v. Superior Court, 60 Cal.2d 436, 34 (1963).
The purpose of the preliminary hearing is to establish whether there exists probable cause to believe that the defendant has committed a felony. It is expressly provided by statute that the examination shall not be used for purposes of discovery. Penal Code Section 866(b).
Burden of Proof
The prosecutor bears the burden of proof at a preliminary hearing. The burden of proof is far less than "beyond a reasonable doubt," as it would be at a trial; it is even less than the preponderance of the evidence standard used in civil cases.
All that is required to hold a defendant to answer for trial at a preliminary hearing is a strong suspicion that the defendant committed the crimes. "Reasonable and probable cause" to hold a defendant to answer has been defined as "such a state of facts as would lead a man of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion of the guilt of the accused." People v. Uhlemann, 9 Cal.3d 662, 667 (1973).
One reasonable inference of guilt from the evidence is all that is needed to hold the defendant to answer, even if other reasonable inferences point to innocence. The defendant may be held to answer if there is some rational ground for assuming the possibility that he or she committed a crime. People v. Superior Court (Lujan), 73 Cal.App.4th 1123, 1127 (1999).
Rules of Evidence
Generally, the rules of evidence are the same as applied at trial with two special exceptions: Proposition 115 hearsay is allowed, in an effort to "streamline the preliminary hearing process," and the defense must make an offer of proof prior to calling its own witnesses.
Hearsay is evidence of a statement that was made other than by a witness while testifying at a hearing that is offered to prove the truth of the matter stated. Evidence Code Section 1200(a).
To be admissible under Proposition 115, hearsay must be related by a peace officer who either has five or more years of experience on the force, or has received specified training in interviewing witnesses and relating their statements in court. Penal Code Section 872(b).
The officer's testimony can only constitute one level of hearsay; multiple hearsay is inadmissible at preliminary hearings; another hearsay exception is required for the second level of hearsay to be admissible. Montez v. Superior Court, 4 Cal.App.4th 577 (1992). Multiple hearsay would result when an officer testifies that the first witness told him that a second witness told the first witness that the defendant hit the second witness with a shovel; the officer's testimony here is inadmissible.
The testimony of a "reader officer" is inadmissible; an officer lacking any personal knowledge of the case who simply reads from another officer's report will be insufficient and incompetent evidence to constitute probable cause to bind a defendant over for trial. Whitman v. Superior Court, 54 Cal.3d 1063, 1074 (1991).
Translation by an interpreter is not inadmissible as another level of hearsay. The interpreter is merely a "language conduit" and the translated statement is attributable to the original witness. Correa v. Superior Court, 27 Cal.4th 444, 448 (2002).
The Aranda/Bruton rule (inadmissibility of statements or confession of co-defendant against another) does not apply at preliminary hearings. People v. Miranda, 23 Cal.4th 340, 352 (2000). The magistrate must decide "the weight to be given to that testimony, based on such considerations as the circumstances surrounding the confession, the relative reliability of its source, and the extent to which it is corroborated."
Regarding the defense putting on evidence, Penal Code Section 866(a) was added to provide that prior to the defense calling witnesses at the preliminary hearing, the defense must make an offer of proof that the witness "would be reasonably likely to establish an affirmative defense, negate an element of a crime charged, or impeach the testimony of a prosecution witness or the statement of a declarant testified to by a prosecution witness." The defense may also present Proposition 115 hearsay evidence when the officer testifying is qualified and Penal Code Section 866 is satisfied. Nienhouse v. Superior Court, 42 Cal.App.4th 92 (1996).
The preliminary hearing must be heard not less than two court days nor more than 10 court days of the date of the arraignment. Both the defendant and the prosecution have a right to a preliminary hearing within the 10 court day period, unless both waive that right or good cause is found for the continuance as provided in Penal Code Section 1050. Penal Code Section 859b. Both sides have a right to trail the case until the last day if there is good cause shown.
The magistrate must dismiss the complaint if the defendant is in custody solely on that complaint and the preliminary hearing is not heard within this 10 court day period, unless the defendant personally waives this right, or the prosecution establishes good cause for the continuance. Penal Code Section 859b.
If the court finds good cause for the continuance beyond the 10 court day rule, the defendant shall be released on his own recognizance, unless the defendant requests the setting of the continuance beyond the 10 court day rule, the defendant is charged with a capital offense and the proof is evident and the presumption great, a necessary witness is unavailable due to the actions of the defendant, counsel is ill or engaged in a jury trial or an unforeseen conflict of interest is declared that requires appointment of new counsel. Penal Code Section 859b. Another requirement is that the defendant must be in custody solely due to the preliminary hearing case in order to be released on his own recognizance. Blake v. Superior Court, 108 Cal.App.3d 244, 248 (1980).
A defendant has a right to have the preliminary heard within 60 calendar days from the date of the arraignment, plea or reinstatement of criminal proceedings. The magistrate may not continue the case beyond that time unless the defendant personally waives this right.
When a defendant is held to answer for a trial after a preliminary hearing, his or her case is then heard in a trial court. The defendant can challenge the holding order arguing that there was insufficient evidence presented, and move to dismiss the case under Penal Code Section 995.
If a defendant is not held to answer, the prosecution has a similar remedy to the defendant's Penal Code Section 995 motion: The prosecution can file a challenge in the trial court alleging that there was sufficient evidence presented to hold the defendant to answer under Penal Code Section 871.5.
There are two main grounds for motions to set aside an information following a holding order at a preliminary hearing under Section 995: motions based on the sufficiency of the evidence; and motions based on the denial of a defendant's substantial rights at the preliminary hearing.
Regarding sufficiency, the trial judge acts like an appellate court reviewing a lower court's decisions. The record that the court reviews in ruling on a Penal Code Section 995-type motion is the transcript of the proceedings of the preliminary hearing. People v. Crudgington, 88 Cal.App.3d 295, 299 (1997). Just like an appellate court may not rely on matters outside what was presented in the lower court, so too a judge ruling on a Section 995 motion must confine his or her decision to what was presented at the preliminary hearing.
The judge ruling on a motion to set aside an information, much like an appellate court, must defer to the magistrate's findings of facts, so long as they are supported by substantial evidence, and cannot re-weigh the evidence presented. People v. Slaughter, 35 Cal.3d 629, 638. "A reviewing court may not substitute its judgment as to the weight of the evidence for that of a magistrate who holds a defendant to answer for charges against him or her. If there is some evidence to support an information, a court will not inquire into its sufficiency. Every legitimate inference that may be drawn from the evidence must be drawn in favor of an information." Rideout v. Superior Court, 67 Cal.2d 471, 474 (1967). A magistrate's legal rulings, on the other hand, can be ignored by the court deciding a Section 995 motion: The court reviews the legal findings de novo. People v. Laiwa, 34 Cal.3d 711, 718 (1983).
Defense counsel may challenge all the charges in an information, or just some of the charges based on the sufficiency of the evidence that was presented. People v. Sherwin, 82 Cal.App.4th 1404 (2000). If desired, the challenge may be mounted with respect to only an enhancement, such as one exposing the defendant to increased punishment due to infliction of great bodily injury on a victim, or with respect to a special circumstance that exposes the defendant to the death penalty. People v. Superior Court, (Mendella), 33 Cal.3d 754, 763 (1983).
It must be kept in mind that sufficient evidence means that there is sufficient competent evidence supporting the charges. If inadmissible evidence was admitted at the preliminary hearing over counsel's objection, such as hearsay or expert evidence lacking a proper foundation, and that evidence is necessary to support a charge, then the defendant's motion to dismiss must be granted. Jimenez v. Superior Court, 38 Cal.App.4th 795, 801 (1995).
The same goes for evidence that should have been suppressed at the preliminary hearing due to a constitutional violation: If the magistrate erroneously denied a defendant's motion to suppress under Penal Code Section 1538.5 due to a Fourth Amendment violation, or wrongly admitted a defendant's confession in violation of the defendant's Miranda rights - assuming there is no other evidence sufficient to support the holding order - the information should be dismissed under Penal Code Section 995.
A judge can grant a motion, dismissing the defendant's case. Alternately, a judge can deny the motion, but find that an error occurred that requires a limited remand to the preliminary hearing magistrate. Penal Code Section 995a(b)(1). Under this section, a judge can remand to correct "minor errors of omission, ambiguity, or technical defect which can be expeditiously cured or corrected without a rehearing of a substantial portion of the evidence."
Kristi Lousteau and Ronald Rose are Los Angeles County Superior Court commissioners.