What is the role of the trial court in reviewing an order of the magistrate pursuant to section 995 of the Penal Code?

California, United States of America


The following excerpt is from People v. Murray, 21 Cal.App.3d 864, 99 Cal.Rptr. 55 (Cal. App. 1971):

The function of the trial court in reviewing an order of the magistrate made pursuant to section 995 is stated in People v. Heard, 266 Cal.App.2d 747, 749--750, 72 Cal.Rptr. 374, 375--376:

'However, in considering a motion to dismiss under Penal Code section 995, the superior court is sitting as a reviewing court and is bound by the rules enunciated in Perry v. Superior Court, 57 Cal.2d 276, 283--284, 19 Cal.Rptr. 1, 368 P.2d 529: 'Although the magistrate, in reaching his decision (to hold an accused to answer following a preliminary hearing), may weigh the evidence, resolve [21 Cal.App.3d 867] conflicts, and give or withhold credence to witnesses, Such a balancing of the evidence is not within the powers of a tribunal reviewing the magistrate's order. (Citation.)' (Italics added.)

The propriety of this rule is particularly apparent when, as in the instant case, the superior court sitting as a court of review under Penal Code section 995 is asked to consider a terse and limited record of a preliminary hearing involving an issue that may be relitigated in a full and adversary hearing either at the time of trial or at a hearing upon a defendant's motion to suppress evidence under Penal Code section 1538.5. As aptly stated in Badillo v. Superior Court, 46 Cal.2d 269, 271--272, 294 P.2d 23:

Other Questions


What is the effect of section 633.5 of the California Penal Code on a phone recording pursuant to section 632 of the Penal Code? (California, United States of America)
When a fee order under review is ordered by a judge other than the trial judge, does the court have any discretion or authority to review the order? (California, United States of America)
What is the test for a motion to review an order from the Superior Court of Appeal against a motion of appeal against an order requiring the Court to review the order? (California, United States of America)
Does section 654 of the California Penal Code allow for an act or omission that is punishable by different sections of the Penal Code to be punished by one or more sections? (California, United States of America)
Does section 1170(d)(1) of the California Criminal Code give the trial court authority to resent the sentence of a defendant pursuant to Section 1170 of the Criminal Code? (California, United States of America)
What is the effect of section 654 of the Criminal Code of Ontario's Criminal Code when a court finds that a conviction is subject to the provisions of Section 654, subdivision (a) of the Act of the Court of Justice? (California, United States of America)
Does Section 26 of the Penal Code section 2600 of the California Penal Code apply? (California, United States of America)
Does Section 1054(1) of the California Civil Code of Civil Procedure, section 1054 et. seq. and section 854 of the Criminal Code, allow defense counsel to conduct their investigation and prepare for trial? (California, United States of America)
How has section 490.2 of the California Penal Code been interpreted in the context of Section 487 of the Penal Code? (California, United States of America)
Can a defendant be convicted of a lesser included crime of the same crime under both sections of the California Penal Code and Section 654 of the Penal Code? (California, United States of America)
X



Alexi white


"The most advanced legal research software ever built."

Trusted by top litigators from across North America.