second preliminary hearing in California

1999(Ramos v. Superior Court (1982) 32 Cal.3d 26, 34 [ 184 Cal.Rptr. 622 , 648 P.2d 589 ]; Bodner v. Superior Court (1996) 42 Cal.App.4th 1801, 1804-1805 [ 50 Cal.Rptr.2d 236 ]; 5 Witkin & Epstein, Cal. Criminal Law (2d ed. 1989) Trial, §§ 2561, 2563, pp. 3069-3070, 3072-3073.) When the first action is terminated under this procedure and the People file a new complaint, a second preliminary hearing must be held and the evidence subjected anew to a magistrate’s evaluation.

1999(Ramos v. Superior Court (1982) 32 Cal.3d 26, 34 [ 184 Cal.Rptr. 622 , 648 P.2d 589 ]; Bodner v. Superior Court (1996) 42 Cal.App.4th 1801, 1804-1805 [ 50 Cal.Rptr.2d 236 ]; 5 Witkin & Epstein, Cal. Criminal Law (2d ed. 1989) Trial, §§ 2561, 2563, pp. 3069-3070, 3072-3073.) When the first action is terminated under this procedure and the People file a new complaint, a second preliminary hearing must be held and the evidence subjected anew to a magistrate’s evaluation.

2017"Therefore, if a preliminary hearing is held while a defendant is incompetent, and if criminal proceedings subsequently resume upon restoration of his competence, the defendant would be entitled to have the information set aside." ( Hale, supra , 15 Cal.3d at p. 228 , 124 Cal.Rptr. 57 , 539 P.2d 817 .) To bring the defendant to trial would require a second preliminary hearing or grand jury proceeding. ( Ibid . ) In 1982 the Legislature amended Penal Code section 1368.1.

2017"Therefore, if a preliminary hearing is held while a defendant is incompetent, and if criminal proceedings subsequently resume upon restoration of his competence, the defendant would be entitled to have the information set aside." ( Hale, supra , 15 Cal.3d at p. 228 , 124 Cal.Rptr. 57 , 539 P.2d 817 .) To bring the defendant to trial would require a second preliminary hearing or grand jury proceeding. ( Ibid . ) In 1982 the Legislature amended Penal Code section 1368.1.

1999(Ramos v. Superior Court (1982) 32 Cal.3d 26, 34 [ 184 Cal.Rptr. 622 , 648 P.2d 589 ]; Bodner v. Superior Court (1996) 42 Cal.App.4th 1801, 1804-1805 [ 50 Cal.Rptr.2d 236 ]; 5 Witkin & Epstein, Cal. Criminal Law (2d ed. 1989) Trial, §§ 2561, 2563, pp. 3069-3070, 3072-3073.) When the first action is terminated under this procedure and the People file a new complaint, a second preliminary hearing must be held and the evidence subjected anew to a magistrate’s evaluation.

1999(Ramos v. Superior Court (1982) 32 Cal.3d 26, 34 [ 184 Cal.Rptr. 622 , 648 P.2d 589 ]; Bodner v. Superior Court (1996) 42 Cal.App.4th 1801, 1804-1805 [ 50 Cal.Rptr.2d 236 ]; 5 Witkin & Epstein, Cal. Criminal Law (2d ed. 1989) Trial, §§ 2561, 2563, pp. 3069-3070, 3072-3073.) When the first action is terminated under this procedure and the People file a new complaint, a second preliminary hearing must be held and the evidence subjected anew to a magistrate’s evaluation.

2023(Martinez, supra, 19 Cal.App.4th at p. 744 .) Had the prosecutor chosen to treat the magistrate’s dismissal “as a final termination of that (first) action, and start over with a new (second action)”—by filing a new complaint and submitting to a second preliminary hearing—“the magistrate’s order of dismissal of the complaint under section 871 [would have] terminate[d] the (first) action.” (Id. at p. 745.) But where the prosecutor elects under section 739 to stand on the record of the original preliminary hearing and file an information charging the defendant with offenses beyond those named in

2023(Martinez, supra, 19 Cal.App.4th at p. 744 .) Had the prosecutor chosen to treat the magistrate’s dismissal “as a final termination of that (first) action, and start over with a new (second action)”—by filing a new complaint and submitting to a second preliminary hearing—“the magistrate’s order of dismissal of the complaint under section 871 [would have] terminate[d] the (first) action.” (Id. at p. 745.) But where the prosecutor elects under section 739 to stand on the record of the original preliminary hearing and file an information charging the defendant with offenses beyond those named in

2015(People v. Duff (2014) 58 Cal.4th 527, 550, fn. 9 .) In his opening brief appellant states: "Failure to assert a meritorious motion to dismiss gang enhancements pursuant to section 995 upon filing of the first information [not second information] was constitutionally deficient 6 performance." (Italics added.) "There was no evidence at the first preliminary hearing of the jail call evidence, that might support probable cause to find [appellant] and Miguel were hatching a plan to raise money for Armando's appellate defense." The argument is also forfeited because appellant fails to present a sum

2010(See, e.g., Burris v. Superior Court (2005) 34 Cal.4th 1012, 1019 [ 22 Cal.Rptr.3d 876 , 103 P.3d 276 ]; Ramos v. Superior Court (1982) 32 Cal.3d 26, 29 [ 184 Cal.Rptr. 622 , 648 P.2d 589 ].) Accordingly, pursuant to the rule we set forth in Pompa-Ortiz , on appeal defendants are required to establish not only that the denial of their section 995 motions was erroneous, but also that they were prejudiced by such error.

2010(See, e.g., Burris v. Superior Court (2005) 34 Cal.4th 1012, 1019 [ 22 Cal.Rptr.3d 876 , 103 P.3d 276 ]; Ramos v. Superior Court (1982) 32 Cal.3d 26, 29 [ 184 Cal.Rptr. 622 , 648 P.2d 589 ].) Accordingly, pursuant to the rule we set forth in Pompa-Ortiz , on appeal defendants are required to establish not only that the denial of their section 995 motions was erroneous, but also that they were prejudiced by such error.

2000(People v. Barrera (1999) 70 Cal.App.4th 541, 551 [ 82 Cal.Rptr.2d 755 ] [legislative intent to maintain existing law can be inferred where a single statutory provision is amended while others are left intact].) The 1982 amendment to section 1368.1 therefore does not affect the “two preliminary hearings” rule.

2000(People v. Barrera (1999) 70 Cal.App.4th 541, 551 [ 82 Cal.Rptr.2d 755 ] [legislative intent to maintain existing law can be inferred where a single statutory provision is amended while others are left intact].) The 1982 amendment to section 1368.1 therefore does not affect the “two preliminary hearings” rule.

1993(E.g., People v. Schlosser, supra, 77 Cal.App.3d at p. 1009 ; see *749 also Landrum v. Superior Court (1981) 30 Cal.3d 1, 14 [ 177 Cal.Rptr. 325 , 634 P.2d 352 ] [after first dismissal for failure to hold preliminary hearing within 10 days, filing of new complaint commences new 10-day period for holding second preliminary hearing].) The policy and reasoning of Cossio, Schlosser, and section 1387, subdivision (b) are applicable here.

1993(E.g., People v. Schlosser, supra, 77 Cal.App.3d at p. 1009 ; see *749 also Landrum v. Superior Court (1981) 30 Cal.3d 1, 14 [ 177 Cal.Rptr. 325 , 634 P.2d 352 ] [after first dismissal for failure to hold preliminary hearing within 10 days, filing of new complaint commences new 10-day period for holding second preliminary hearing].) The policy and reasoning of Cossio, Schlosser, and section 1387, subdivision (b) are applicable here.

1986(Cf. Carlos v. Superior Court, supra, 35 Cal.3d 131, 145-146 .) The second termination occurred on July 22, 1986, when the magistrate at the second preliminary hearing declined to hold petitioner to answer on the murder charges even though the magistrate did not “. . . reduce his or her decision of dismissal to writing.” (In re Williams (1985) 164 Cal.App.3d 979, 983 [ 211 Cal.Rptr. 32 ].) “. . . [A] failure or refusal to hold [to answer], even without a formal order of dismissal, constitutes a termination of the action within the meaning of section 1387.” (In re Williams, supra, at p. 983.) T

1986(Cf. Carlos v. Superior Court, supra, 35 Cal.3d 131, 145-146 .) The second termination occurred on July 22, 1986, when the magistrate at the second preliminary hearing declined to hold petitioner to answer on the murder charges even though the magistrate did not “. . . reduce his or her decision of dismissal to writing.” (In re Williams (1985) 164 Cal.App.3d 979, 983 [ 211 Cal.Rptr. 32 ].) “. . . [A] failure or refusal to hold [to answer], even without a formal order of dismissal, constitutes a termination of the action within the meaning of section 1387.” (In re Williams, supra, at p. 983.) T

1986Upon the prosecutor’s representation that the People were unable to proceed any further, the complaint was dismissed for insufficient evidence. (§ 871.) Upon review in the superior court (§ 871.5), the judge found that pursuant to Tidwell v. Superior Court (1971) 17 Cal.App.3d 780, 787-789 [ 95 Cal.Rptr. 213 ], the “error of the future date [in Hoover’s affidavit] . . . should not preclude. . . probable cause for the issuance of a search warrant. ” We agree.

1986Upon the prosecutor’s representation that the People were unable to proceed any further, the complaint was dismissed for insufficient evidence. (§ 871.) Upon review in the superior court (§ 871.5), the judge found that pursuant to Tidwell v. Superior Court (1971) 17 Cal.App.3d 780, 787-789 [ 95 Cal.Rptr. 213 ], the “error of the future date [in Hoover’s affidavit] . . . should not preclude. . . probable cause for the issuance of a search warrant. ” We agree.

1983See Reece v. Georgia, 350 U.S. 85, 90 (1955); Glasser v. United States, 315 U.S. 60, 69-70 (1942); Avery v. Alabama, 308 U.S. 444, 446 (1940); Powell v. Alabama, 287 U.S. 45, 57 (1932)." ( McMann v. Richardson (1970) 397 U.S. 759, 771, fn. 14 [ 25 L.Ed.2d 763, 773 , 90 S.Ct. 1441 ]; Maxwell v. Superior Court (1982) 30 Cal.3d 606, 612 [ 180 Cal. Rptr. 177 , 639 P.2d 248 , 18 A.L.R.4th 333 ].) Therefore, the courts have required that defense counsel meet the standard of representation to be expected of "a reasonably competent attorney acting as a diligent, conscientious advocate." ( People v. Po

1983See Reece v. Georgia, 350 U.S. 85, 90 (1955); Glasser v. United States, 315 U.S. 60, 69-70 (1942); Avery v. Alabama, 308 U.S. 444, 446 (1940); Powell v. Alabama, 287 U.S. 45, 57 (1932)." ( McMann v. Richardson (1970) 397 U.S. 759, 771, fn. 14 [ 25 L.Ed.2d 763, 773 , 90 S.Ct. 1441 ]; Maxwell v. Superior Court (1982) 30 Cal.3d 606, 612 [ 180 Cal. Rptr. 177 , 639 P.2d 248 , 18 A.L.R.4th 333 ].) Therefore, the courts have required that defense counsel meet the standard of representation to be expected of "a reasonably competent attorney acting as a diligent, conscientious advocate." ( People v. Po

1983See Reece v. Georgia, 350 U.S. 85, 90 (1955); Glasser v. United States, 315 U.S. 60, 69-70 (1942); Avery v. Alabama, 308 U.S. 444, 446 (1940); Powell v. Alabama, 287 U.S. 45, 57 (1932)." ( McMann v. Richardson (1970) 397 U.S. 759, 771, fn. 14 [ 25 L.Ed.2d 763, 773 , 90 S.Ct. 1441 ]; Maxwell v. Superior Court (1982) 30 Cal.3d 606, 612 [ 180 Cal. Rptr. 177 , 639 P.2d 248 , 18 A.L.R.4th 333 ].) Therefore, the courts have required that defense counsel meet the standard of representation to be expected of "a reasonably competent attorney acting as a diligent, conscientious advocate." ( People v. Po

1983See Reece v. Georgia, 350 U.S. 85, 90 (1955); Glasser v. United States, 315 U.S. 60, 69-70 (1942); Avery v. Alabama, 308 U.S. 444, 446 (1940); Powell v. Alabama, 287 U.S. 45, 57 (1932)." ( McMann v. Richardson (1970) 397 U.S. 759, 771, fn. 14 [ 25 L.Ed.2d 763, 773 , 90 S.Ct. 1441 ]; Maxwell v. Superior Court (1982) 30 Cal.3d 606, 612 [ 180 Cal. Rptr. 177 , 639 P.2d 248 , 18 A.L.R.4th 333 ].) Therefore, the courts have required that defense counsel meet the standard of representation to be expected of "a reasonably competent attorney acting as a diligent, conscientious advocate." ( People v. Po

1983See Reece v. Georgia, 350 U.S. 85, 90 (1955); Glasser v. United States, 315 U.S. 60, 69-70 (1942); Avery v. Alabama, 308 U.S. 444, 446 (1940); Powell v. Alabama, 287 U.S. 45, 57 (1932)." ( McMann v. Richardson (1970) 397 U.S. 759, 771, fn. 14 [ 25 L.Ed.2d 763, 773 , 90 S.Ct. 1441 ]; Maxwell v. Superior Court (1982) 30 Cal.3d 606, 612 [ 180 Cal. Rptr. 177 , 639 P.2d 248 , 18 A.L.R.4th 333 ].) Therefore, the courts have required that defense counsel meet the standard of representation to be expected of "a reasonably competent attorney acting as a diligent, conscientious advocate." ( People v. Po

1983See Reece v. Georgia, 350 U.S. 85, 90 (1955); Glasser v. United States, 315 U.S. 60, 69-70 (1942); Avery v. Alabama, 308 U.S. 444, 446 (1940); Powell v. Alabama, 287 U.S. 45, 57 (1932)." ( McMann v. Richardson (1970) 397 U.S. 759, 771, fn. 14 [ 25 L.Ed.2d 763, 773 , 90 S.Ct. 1441 ]; Maxwell v. Superior Court (1982) 30 Cal.3d 606, 612 [ 180 Cal. Rptr. 177 , 639 P.2d 248 , 18 A.L.R.4th 333 ].) Therefore, the courts have required that defense counsel meet the standard of representation to be expected of "a reasonably competent attorney acting as a diligent, conscientious advocate." ( People v. Po

1983See Reece v. Georgia, 350 U.S. 85, 90 (1955); Glasser v. United States, 315 U.S. 60, 69-70 (1942); Avery v. Alabama, 308 U.S. 444, 446 (1940); Powell v. Alabama, 287 U.S. 45, 57 (1932)." ( McMann v. Richardson (1970) 397 U.S. 759, 771, fn. 14 [ 25 L.Ed.2d 763, 773 , 90 S.Ct. 1441 ]; Maxwell v. Superior Court (1982) 30 Cal.3d 606, 612 [ 180 Cal. Rptr. 177 , 639 P.2d 248 , 18 A.L.R.4th 333 ].) Therefore, the courts have required that defense counsel meet the standard of representation to be expected of "a reasonably competent attorney acting as a diligent, conscientious advocate." ( People v. Po

1983See Reece v. Georgia, 350 U.S. 85, 90 (1955); Glasser v. United States, 315 U.S. 60, 69-70 (1942); Avery v. Alabama, 308 U.S. 444, 446 (1940); Powell v. Alabama, 287 U.S. 45, 57 (1932)." ( McMann v. Richardson (1970) 397 U.S. 759, 771, fn. 14 [ 25 L.Ed.2d 763, 773 , 90 S.Ct. 1441 ]; Maxwell v. Superior Court (1982) 30 Cal.3d 606, 612 [ 180 Cal. Rptr. 177 , 639 P.2d 248 , 18 A.L.R.4th 333 ].) Therefore, the courts have required that defense counsel meet the standard of representation to be expected of "a reasonably competent attorney acting as a diligent, conscientious advocate." ( People v. Po

1983See Reece v. Georgia, 350 U.S. 85, 90 (1955); Glasser v. United States, 315 U.S. 60, 69-70 (1942); Avery v. Alabama, 308 U.S. 444, 446 (1940); Powell v. Alabama, 287 U.S. 45, 57 (1932)." ( McMann v. Richardson (1970) 397 U.S. 759, 771, fn. 14 [ 25 L.Ed.2d 763, 773 , 90 S.Ct. 1441 ]; Maxwell v. Superior Court (1982) 30 Cal.3d 606, 612 [ 180 Cal. Rptr. 177 , 639 P.2d 248 , 18 A.L.R.4th 333 ].) Therefore, the courts have required that defense counsel meet the standard of representation to be expected of "a reasonably competent attorney acting as a diligent, conscientious advocate." ( People v. Po

1983See Reece v. Georgia, 350 U.S. 85, 90 (1955); Glasser v. United States, 315 U.S. 60, 69-70 (1942); Avery v. Alabama, 308 U.S. 444, 446 (1940); Powell v. Alabama, 287 U.S. 45, 57 (1932)." ( McMann v. Richardson (1970) 397 U.S. 759, 771, fn. 14 [ 25 L.Ed.2d 763, 773 , 90 S.Ct. 1441 ]; Maxwell v. Superior Court (1982) 30 Cal.3d 606, 612 [ 180 Cal. Rptr. 177 , 639 P.2d 248 , 18 A.L.R.4th 333 ].) Therefore, the courts have required that defense counsel meet the standard of representation to be expected of "a reasonably competent attorney acting as a diligent, conscientious advocate." ( People v. Po

1983His participation was limited to a reiteration of his view that he was unable to render effective assistance without the benefit of a second preliminary hearing. (1) The Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution guarantee criminal defendants the right to be represented by counsel at trial. ( Gideon v. Wainwright (1963) 372 U.S. 335 , 342-345 [ 9 L.Ed.2d 799, 803-805 , 83 S.Ct. 792 ]; Argersinger v. Hamlin (1972) 407 U.S. 25, 37 [ 32 L.Ed.2d 530, 538 , 92 S.Ct. 2006 ].) (2) "It has long been recognized that the right to counsel i

1983His participation was limited to a reiteration of his view that he was unable to render effective assistance without the benefit of a second preliminary hearing. (1) The Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution guarantee criminal defendants the right to be represented by counsel at trial. ( Gideon v. Wainwright (1963) 372 U.S. 335 , 342-345 [ 9 L.Ed.2d 799, 803-805 , 83 S.Ct. 792 ]; Argersinger v. Hamlin (1972) 407 U.S. 25, 37 [ 32 L.Ed.2d 530, 538 , 92 S.Ct. 2006 ].) (2) "It has long been recognized that the right to counsel i