People v. Ladmirault

Opinion

GATES, J. The People appeal from the order of dismissal entered after the trial court granted defendant’s motion to set aside the information (Pen. Code, § 995) due to the unavailability of a preliminary hearing transcript.

Defendant was arraigned and pled not guilty on June 1, 1988, to a charge of robbery (Pen. Code, § 211) with allegations that he personally used a firearm during the commission of that offense (Pen. Code, § 12022.5) and had been convicted previously of a violent felony within the meaning of Penal Code section 667, subdivision (a) and section 667.5, subdivision (a). [902]Trial was initially set for June 20, 1988, but was subsequently continued, at defendant’s request, first to July 20, and later to September 21, 1988.

On August 17, 1988, defendant moved to set aside the information on the grounds that “insufficient evidence [was] introduced at the preliminary examination in this action for the defendant to have been held to answer in superior court.” In truth, however, this motion was not premised upon a lack of evidence at that proceeding but rather upon the failure of the reporter to provide a transcript thereof. Remarkably this motion was noticed for hearing the following day. It resulted in a contretemps that brought credit to no one.

The People voiced various objections to the motion and asserted that options other than dismissal were available, such as requiring the reporter to appear with her personal notes and testify under oath. The superior court judge indicated he had contacted the municipal court “to see whether or not there [wa]s any realistic possibility at all of getting the transcripts within a day or two,” and instructed counsel for the People, “I will give you until tomorrow to tell me why I shouldn’t grant a 995.”

When proceedings resumed on August 18, the court announced it had been informed no preliminary hearing transcript had been prepared and that the reporter would “be gone for over 30 days on a daily transcript” and could not be reached. It then granted defendant’s motion.

The seven-page transcript actually was filed thirteen days later on August 31, 1988. Defendant does not, and could not, claim the proofs set forth therein were insufficient to hold him to answer for armed robbery. Rather he urges we should limit our review to the record before the superior court.