People v. Palmer CA1/4

Filed 1/15/25 P. v. Palmer CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Appellant, A170500 v. LAZEBIETY DEAN PALMER, JR., (Solano County Super. Ct. No. VCR236252) Defendant and Respondent.

MEMORANDUM OPINION1 After defendant Lazebiety Dean Palmer, Jr., was held to answer for three counts of attempted murder (§§ 664, 187) and several other felony charges, he filed a motion to set aside the information under section 995. According to that motion, the People deprived Palmer of a substantial right by failing to disclose purportedly exculpatory and material evidence under Brady v. Maryland (1963) 373 U.S. 83 (Brady) before the preliminary hearing. The trial court granted Palmer’s motion and the People filed this appeal, arguing the order of dismissal should be reversed because (inter alia) the failure to disclose evidence did not deprive Palmer of any substantial

1 We resolve this case by memorandum opinion. (Cal. Stds. Jud. Admin., § 8.1.) We provide a limited factual summary because our opinion is unpublished and the parties know, or should know, “the facts of the case and its procedural history.” (People v. Garcia (2002) 97 Cal.App.4th 847, 851.) All statutory references are to the Penal Code. 1

right. We agree and therefore reverse the order, remanding the matter for further proceedings. “Breach of the prosecution’s Brady obligation in connection with a preliminary hearing can be raised by the defendant in a nonstatutory motion to dismiss.” (People v. Gutierrez (2013) 214 Cal.App.4th 343, 348–349 (Gutierrez).) Here, Palmer filed a motion to set aside the information under section 995, not a nonstatutory motion to dismiss. However, as the People acknowledge, this “did not necessarily bar the superior court from granting [him] relief,” and our reversal of the order dismissing the charges against Palmer does not depend on that technical defect. (See People v. Aguirre (1987) 193 Cal.App.3d 1168, 1171, fn. 1.) Rather, as we explain below, the trial court erred because Palmer was not entitled to relief under the standards governing a nonstatutory motion to dismiss. “ ‘ “It is settled that denial of a substantial right at the preliminary examination renders the ensuing commitment illegal and entitles a defendant to dismissal of the information on timely motion.” ’ ” (Gutierrez, supra, 214 Cal.App.4th at p. 349.) “ ‘Nondisclosure of evidence impeaching eyewitnesses on material issues is the deprivation of [the] substantial right’ ” of a defendant to cross-examine witnesses. (Ibid.) But such a deprivation does not result from every curtailment of cross-examination: “ ‘ “Not [in] every instance in which a cross-examiner’s question is disallowed will defendant’s right to a fair hearing be abridged, since the matter may be too unimportant . . . , or there may be no prejudice . . . , or the question may involve issues which can be brought up at a more appropriate time . . . .” ’ ” (Currie v. Superior Court (1991) 230 Cal.App.3d 83, 100 (Currie).) These considerations illustrate “ ‘a more selective test’ ” for whether a substantial right has been infringed, and this test applies where, as here, cross-