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Name: Magallan v. Superior Court (Monterey County)
Case #: H034892
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 02/24/2011

Penal Code section 1054 et. seq. does not deprive a magistrate of the authority to order pre-preliminary hearing discovery in relation to a defendant’s motion to suppress to be litigated at the preliminary hearing. After being charged with a drug offense, the defendant sought discovery of a 911 tape to litigate a motion to suppress in conjunction with the preliminary hearing. The prosecution refused to comply with the discovery request, alleging that it did not fall within the discovery obligations enumerated in Penal Code section 1054.1, and that the magistrate lacked the authority to order discovery of the item requested. The court rejected the prosecution’s argument that because the statute says disclosure must be made “at least 30 days before trial” that discovery was limited to trial discovery and not pre-preliminary hearing discovery. That language does not prohibit a defendant from making a discovery request before that, and such an interpretation would contravene the statute’s goal of timely discovery and result in delays. It is true that the item sought by the defendant does not necessarily fall within the prosecution’s section 1054.1 obligation, and that section 1054 et. seq. expressly controls discovery in criminal cases except as mandated by the federal constitution. However, a defendant also has an express statutory right to make a motion to suppress in conjunction with the preliminary hearing. (Pen. Code, sec. 1538.5, subd. (f).) Thus, as a matter of procedural due process, section 1054.1 should not be strictly interpreted to interfere with this right. (See e.g., People v. Superior Court (Mouchaourab) (2000) 78 Cal.App.4th 403 [rejecting strict interpretation of section 1054 et. seq. to allow discovery of non-testimonial portions of grand jury transcripts so that a defendant could move to dismiss the indictment under section 995].)