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Name: Garcia v. Superior Court
Case #: H033111
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 09/17/2009

Under Penal Code section 995a, subdivision (b)(1), a trial court may institute further proceedings to correct preliminary hearing errors only if the error is comparatively unimportant, and not to provide the actus reus of the charged offense. Appellant was charged with resisting arrest, elevated to a felony because of a gang allegation. At the preliminary hearing, the officer testified that his intent in contacting appellant was to effect a consensual encounter. The prosecutor failed to elicit further testimony to the effect that when the officer then observed activity causing him to suspect that appellant had discarded a weapon he was holding, he yelled to appellant to stop but appellant ignored him. Appellant filed a motion to dismiss the information. (Pen. Code, sec. 995.) The prosecutor conceded the error, but requested that the case be remanded pursuant to section 995a, subdivision (b)(1) to permit the officer to provide the necessary testimony. The appellate court ruled that the trial court erred in granting the request because section 995a, subdivision (b)(1) allows further proceedings to correct errors in the preliminary hearing only where the “errors are minor errors of omission, ambiguity, or technical defect which can be expeditiously cured or corrected without a rehearing of a substantial portion of the evidence.” In the instant case the error was not of the type contemplated by the statute.