People v. Scott CA3

Filed 6/15/15 P. v. Scott CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Butte) ----

THE PEOPLE, C076392

Plaintiff and Appellant, (Super. Ct. No. CM039323)

v.

JEREMY DERANN SCOTT,

Defendant and Respondent.

In June of 1990 California voters drastically curtailed the purpose and scope of preliminary examinations in the state by enacting Proposition 115. (People v. Eid (1994) 31 Cal.App.4th 114, 125 (Eid).) The magistrate and the superior court both acknowledged the limitations imposed by Proposition 115 and both agreed defendant was not entitled to impeach the victim on a peripheral issue involving her credibility, nor was

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he entitled to introduce phone records in the absence of evidence that the victim had the phone number at the time of the alleged inculpatory calls. Nevertheless, the superior court reversed the magistrate’s denial of defendant’s motion to set aside the information under Penal Code section 995 because, in the court’s view, “the prosecution’s rush to argue the case following the conclusion of the People’s evidence and the defense’s failure to articulate to the Court any additional evidence aside from what they articulated in their offer of proof that they intended to present” constituted a “procedural defect that does substantially impact the defendant’s right.” Having disregarded the ruling of the superior court and independently reviewed the determination of the magistrate holding the defendant to answer, as we must (People v. Trujillo (1990) 217 Cal.App.3d 1219, 1224), we conclude the magistrate properly held defendant Jeremy Derann Scott to answer for assault with the intent to commit a felony during the commission of a first degree burglary (Pen. Code, § 220, subd. (b)), first degree burglary (Pen. Code, § 459), sexual penetration of an unconscious person (Pen. Code, § 289, subd. (d)), and oral copulation of an unconscious person (Pen. Code, § 288a, subd. (f)). The order setting aside the information is reversed and the case is remanded to the superior court for further proceedings. FACTS The victim asserted that defendant entered her apartment in the middle of the night while she was asleep and she awoke to him licking and digitally penetrating her vagina and anus. She had met defendant at a class at Butte College in 2011, but they did not have a dating or sexual relationship. She did not give defendant permission to enter the apartment, and she did not consent to the sexual acts. Defendant fled when the victim’s boyfriend returned from a walk. THE PRELIMINARY EXAMINATION AND THE MOTION TO SET ASIDE A police officer who was a detective when the crimes were investigated testified that the victim told him she remembered the assailant from a public speaking class. He