magistrate at the preliminary hearing in California

2007STANDARD OF REVIEW "The purpose of a motion to set aside the accusatory pleading under Penal Code section 995 is to review the sufficiency of the indictment or information on the basis of the record made before the grand jury in the one case or the magistrate at the preliminary hearing in the other." ( People v. Crudgington (1979) 88 Cal.App.3d 295 , 299 [ 151 Cal.Rptr. 737 ]; see People v. Sherwin (2000) 82 Cal.App.4th 1404 , 1411 [ 98 Cal.Rptr.2d 888 ].) "[I]n proceedings under [Penal Code] section 995 it is the magistrate who is the finder of fact; the superior court has none of the foregoi

2007STANDARD OF REVIEW "The purpose of a motion to set aside the accusatory pleading under Penal Code section 995 is to review the sufficiency of the indictment or information on the basis of the record made before the grand jury in the one case or the magistrate at the preliminary hearing in the other." ( People v. Crudgington (1979) 88 Cal.App.3d 295 , 299 [ 151 Cal.Rptr. 737 ]; see People v. Sherwin (2000) 82 Cal.App.4th 1404 , 1411 [ 98 Cal.Rptr.2d 888 ].) "[I]n proceedings under [Penal Code] section 995 it is the magistrate who is the finder of fact; the superior court has none of the foregoi

2023Courts have long maintained that “ ‘[t]he purpose of a 6 motion to set aside the accusatory pleading under Penal Code section 995 is to review the sufficiency of the . . . information on the basis of the record made before. . . the magistrate at the preliminary hearing.’ ” (Stanton v. Superior Court (1987) 193 Cal.App.3d 265, 269 (Stanton).) In deciding such a motion, the court should confine its review “solely” to the preliminary hearing transcript (id. at p. 270), including as augmented pursuant to section 995a.

2017While we agree with petitioner that the statute of limitations is “jurisdictional” in some senses (see, e.g., People v. Williams (1999) 21 Cal.4th 335, 341 [ 87 Cal.Rptr.2d 412 , 981 P.2d 42 ]), we disagree with her implicit assumption that she was entitled *1011 to dismissal under Penal Code section 995 simply because the trial court agreed that the People failed to properly allege tolling of the limitations period. “ ‘The purpose of a motion to set aside the accusatory pleading under Penal Code section 995 is to review the sufficiency of the indictment or information on the basis of the reco

2003(People v. Sanchez (1972) 24 Cal.App.3d 664, 690, fn. 15 [ 101 Cal.Rptr. 193 ], disapproved on another ground in People v. Martin (1973) 9 Cal.3d 687, 695, fn. 8 [ 108 Cal.Rptr. 809 , 511 P.2d 1161 ].) When a felony case is dismissed pursuant to section 1385 (dismissal in furtherance of justice) because a magistrate or the superior court has granted a motion to suppress evidence under section 1538.5, making the evidence insufficient, the People may refile the case and relitigate the suppression motion. (§ 1538.5, subd. (j).) But the defendant’s subsequent motion to suppress “shall be heard by

1980The People cite People v. Sanchez, supra, 24 Cal.App.3d 664, 690 , footnote 15, in which the court states that *405 "... [i]n reviewing on appeal the denial of a motion under Penal Code, section 995, it is the determination of the magistrate at the preliminary hearing that is reviewed. [Citation omitted.] In reviewing on appeal the denial of a renewed motion to suppress pursuant to Penal Code, section 1538.5, subdivision (i) it is the de novo determination of the superior court that is reviewed.” There, the court found that although the motion to suppress pursuant to section 1538.5, subdivisio

1988The defendant shall have the right to litigate the validity of a search or seizure de novo on the basis of the evidence presented at a special hearing.” (§ 1538.5, subd. (i) (1977 as amended).) Thus, under the section’s predecessor, the superior court was not bound by the determinations of the magistrate at the preliminary hearing and the issue was relitigated without restriction subject to narrow appellate review. “[I]t is settled that in ruling on a motion under section 1538.5 the superi- or court sits as a finder of fact with the power to judge credibility, resolve conflicts, weigh evidence

1988The defendant shall have the right to litigate the validity of a search or seizure de novo on the basis of the evidence presented at a special hearing.” (§ 1538.5, subd. (i) (1977 as amended).) Thus, under the section’s predecessor, the superior court was not bound by the determinations of the magistrate at the preliminary hearing and the issue was relitigated without restriction subject to narrow appellate review. “[I]t is settled that in ruling on a motion under section 1538.5 the superi- or court sits as a finder of fact with the power to judge credibility, resolve conflicts, weigh evidence

2003The subdivision does not contain any language authorizing courts to shorten the 75-day notice period. “ ‘ “ ‘It is a well recognized principle of statutory construction that when the Legislature has carefully employed a term in one place and has excluded it in another, it should not be implied where excluded.’ ” ’ ” (People v. Bland (2002) 28 Cal.4th 313, 337 [ 121 Cal.Rptr.2d 546 , 48 P.3d 1107 ], accord, 2A Singer, Sutherland Statutes and Statutory Construction (6th ed. 2000) § 46:06, p. 194; see also Schlick v. Superior Court (1992) 4 Cal.4th 310, 315 [ 14 Cal.Rptr.2d 406 , 841 P.2d 926 ] [

2003The subdivision does not contain any language authorizing courts to shorten the 75-day notice period. “ ‘ “ ‘It is a well recognized principle of statutory construction that when the Legislature has carefully employed a term in one place and has excluded it in another, it should not be implied where excluded.’ ” ’ ” (People v. Bland (2002) 28 Cal.4th 313, 337 [ 121 Cal.Rptr.2d 546 , 48 P.3d 1107 ], accord, 2A Singer, Sutherland Statutes and Statutory Construction (6th ed. 2000) § 46:06, p. 194; see also Schlick v. Superior Court (1992) 4 Cal.4th 310, 315 [ 14 Cal.Rptr.2d 406 , 841 P.2d 926 ] [

2000“Although section 995 does not expressly confine its scope to errors present in the preliminary hearing record, it has, with one exception, been uniformly so construed. [Citation.]” (Currie v. Superior Court (1991) 230 Cal.App.3d 83, 90 [ 281 Cal.Rptr. 250 ], fn. omitted.) “The purpose of a motion to set aside the accusatory pleading under Penal Code section 995 is to review the sufficiency of the indictment or information on the basis of the record made before the grand jury in the one case or the magistrate at the preliminary hearing in the other.

2000“Although section 995 does not expressly confine its scope to errors present in the preliminary hearing record, it has, with one exception, been uniformly so construed. [Citation.]” (Currie v. Superior Court (1991) 230 Cal.App.3d 83, 90 [ 281 Cal.Rptr. 250 ], fn. omitted.) “The purpose of a motion to set aside the accusatory pleading under Penal Code section 995 is to review the sufficiency of the indictment or information on the basis of the record made before the grand jury in the one case or the magistrate at the preliminary hearing in the other.

1989Code, § 996).” (People v. Harris (1967) 67 Cal.2d 866, 870 [ 64 Cal.Rptr. 313 , 434 P.2d 609 ]; People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529 [ 165 Cal.Rptr. 851 , 612 P.2d 941 ].) Therefore, we do not consider on this appeal Provencio’s claims of due process violations because of the alleged restriction of cross-examination by the magistrate at the preliminary hearing.

1989Code, § 996).” (People v. Harris (1967) 67 Cal.2d 866, 870 [ 64 Cal.Rptr. 313 , 434 P.2d 609 ]; People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529 [ 165 Cal.Rptr. 851 , 612 P.2d 941 ].) Therefore, we do not consider on this appeal Provencio’s claims of due process violations because of the alleged restriction of cross-examination by the magistrate at the preliminary hearing.

2023“On appeal from a section 995 review of the denial of a defendant’s motion to suppress, we review the determination of the magistrate at the preliminary hearing. [Citations.] We must draw all presumptions in favor of the magistrate’s factual determinations, and we must uphold the magistrate’s express or implied findings if they are supported by substantial evidence.” (McDonald, supra, 137 Cal.App.4th at p. 529 .) Although we defer to the magistrate on factual issues, we independently determine whether the search was reasonable.

2020A criminal defendant may “challenge the reasonableness of a search or seizure by making a motion to suppress at the preliminary hearing. [Citation.] If the defendant is unsuccessful at the preliminary hearing, he or she may raise the search and seizure matter before the superior court under the standards governing a section 995 motion.” (People v. McDonald (2006) 137 Cal.App.4th 521 , 528– 529 (McDonald).) On appeal, we too review the determination of the magistrate at the preliminary hearing.

2024(People v. Lilienthal (1978) 22 Cal.3d 891, 896-897 ; People v. Hawkins (2012) 211 Cal.App.4th 194, 199-200 .) However, a defendant’s failure to preserve a Fourth Amendment claim for appeal will not preclude appellate review of the merits of the argument if the defendant asserts on appeal, as here, that his or her trial counsel was constitutionally ineffective for failing to preserve the argument.

2023(People v. Lilienthal (1978) 22 Cal.3d 891, 896 .) On appeal from a section 995 review of the denial of a defendant’s motion to suppress, we review the determination of the magistrate at the preliminary hearing.

2004(Cf. People v. Glaser (1995) 11 Cal.4th 354, 360-361, 372-373 [ 45 Cal.Rptr.2d 425 , 902 P.2d 729 ] [police detained defendant as he attempted to approach a private residence while it was under investigation; brief detention and search justified both by need to determine defendant’s connection to premises and by concern for officer safety].) The magistrate at the preliminary hearing found the record too “ambiguous” and incomplete to support the prosecution’s contention that the encounter between appellant and the officers was either consensual or justified by reasonable suspicion.

2004(Cf. People v. Glaser (1995) 11 Cal.4th 354, 360-361, 372-373 [ 45 Cal.Rptr.2d 425 , 902 P.2d 729 ] [police detained defendant as he attempted to approach a private residence while it was under investigation; brief detention and search justified both by need to determine defendant’s connection to premises and by concern for officer safety].) The magistrate at the preliminary hearing found the record too “ambiguous” and incomplete to support the prosecution’s contention that the encounter between appellant and the officers was either consensual or justified by reasonable suspicion.

2022(See Williams v. Superior Court (1969) 71 Cal.2d 1144, 1147 ; Pen.

2022Insofar as [the section 995 motion] rests on consideration of the evidence adduced, we must draw all reasonable inferences in favor of the information 2 The People also filed a notice of appeal from the order dismissing the first degree burglary count. 5 [citations] and decide whether there is probable cause to hold the defendants to answer.” (Lexin v. Superior Court (2010) 47 Cal.4th 1050, 1071-1072 .) In determining whether there is probable cause, “we ask only ‘whether the evidence is such that “a reasonable person could harbor a strong suspicion of the defendant’s guilt.” ’ [Citation.] Thi

2017Standard of Review When ruling on a motion to suppress, the trial court determines the facts, selects the rule of law, and applies the rule to the facts "in order to determine whether the law as applied has been violated." ( People v. Gonzales (2011) 52 Cal.4th 254 , 284, 128 Cal.Rptr.3d 417 , 256 P.3d 543 .) "On appeal from a section 995 review of the denial of a defendant's motion to suppress, we review the determination of the magistrate at the preliminary hearing." ( People v. McDonald (2006) 137 Cal.App.4th 521 , 529, 40 Cal.Rptr.3d 422 .) We review the magistrate's resolution of the fact

2017Standard of Review When ruling on a motion to suppress, the trial court determines the facts, selects the rule of law, and applies the rule to the facts "in order to determine whether the law as applied has been violated." ( People v. Gonzales (2011) 52 Cal.4th 254 , 284, 128 Cal.Rptr.3d 417 , 256 P.3d 543 .) "On appeal from a section 995 review of the denial of a defendant's motion to suppress, we review the determination of the magistrate at the preliminary hearing." ( People v. McDonald (2006) 137 Cal.App.4th 521 , 529, 40 Cal.Rptr.3d 422 .) We review the magistrate's resolution of the fact

2013His assertion that his trial counsel was ineffective in failing to bring such a motion likewise fails. “ „The purpose of a motion to set aside the accusatory pleading under . . . section 995 is to review the sufficiency of the indictment or information on the basis of the record made before the grand jury in the one case or the magistrate at the preliminary hearing in the other.‟ ” (People v. Sherwin (2000) 82 Cal.App.4th 1404, 1411 .) A motion in the trial court under section 995 is the exclusive method for challenging the legality of the commitment.

2007STANDARD OF REVIEW "The purpose of a motion to set aside the accusatory pleading under Penal Code section 995 is to review the sufficiency of the indictment or information on the basis of the record made before the grand jury in the one case or the magistrate at the preliminary hearing in the other." ( People v. Crudgington (1979) 88 Cal.App.3d 295 , 299 [ 151 Cal.Rptr. 737 ]; see People v. Sherwin (2000) 82 Cal.App.4th 1404 , 1411 [ 98 Cal.Rptr.2d 888 ].) "[I]n proceedings under [Penal Code] section 995 it is the magistrate who is the finder of fact; the superior court has none of the foregoi

1974(People v. Maltz, supra, 14 Cal.App.3d 381, 389 .) Furthermore, we agree with the magistrate that if the information secured through the search of the trash can is excised from the affidavit in support of the warrant, the remaining facts known to the affiant officers, viewed in the context of their expertise which is fully set forth in the affidavit and supporting document, were ample to justify the issuance of the warrant.

1972(See People v. Maltz, 14 Cal.App.3d 381, 389 [ 92 Cal.Rptr. 216 ] and cases cited.) In passing on a renewed motion to suppress under Penal Code, section 1538.5, subdivision (i) the defendant is entitled to a de novo hearing and the superior court determines the facts anew.

2024Section 995 provides, in pertinent part, that an information shall be set aside when the “defendant had been committed without reasonable or probable cause.” (§ 995, subd. (a)(2)(B).) In effect, “ ‘section 995 allows a defendant to challenge an information based on the sufficiency of the record made before the magistrate at the preliminary hearing.’ ” (Mendoza v. Superior Court (2023) 91 Cal.App.5th 42 , 54.) Notwithstanding section 995, the prosecution has the power to file “an information against the defendant which may charge the defendant with either the offense or offenses named in the or