Wednesday, February 27, 2008

Prelims: The Peanut Case

The Stud conducted his second preliminary hearing today. In fact, the judge specifically requested that the supervising Deputy District Attorney let the Stud conduct one. The testifying officer is actually a partner of the officer who testified at the Stud's first preliminary hearing.

This one involved a combination of Cal. Penal Code § 664 and Cal. Health & Safety Code § 11350. In other words, "attempted possession", specifically of rock cocaine in the form of cocaine base. This is a little different from straight possession, possession for sale, or sale, because no actual drug was transacted.

Now, at a preliminary hearing, typically the law is very much on the side of the prosecutor. All that is required at a preliminary hearing is for the prosecution to establish "probable cause", which is a lower standard than "reasonable doubt", the standard in effect in a criminal jury trial. This is similar to the lowered standard by which Federal grand juries indict federal criminal defendants.

Still, the Deputy Public Defender is tasked with the unenviable job of doing his best to win. Some DPDs, especially "green" ones, tend to object to everything in trying to be obstructionist (although there are rumors that this tactic has been adopted by many DPDs in the County of Los Angeles because that is how one of their trainers advocate their job), and even pursue lines of questioning at the preliminary hearing that would perhaps be more appropriate at trial.

In this case, the DPD argued that because the ersatz "nickel" of rock was never recovered from the defendant, there was no possession, and that in any case because the dope was fake, there could not have been possession. (First year students will recall this to be "impossibility", a point raised when the Stud chatted with Professor Goldman.)

Nevertheless, the charge was "attempted possession", so it was sufficient to show that the defendant actually paid money in exchange for the item (which the Stud established by a follow-on question in redirect), as it showed intent to possess and an overt act or substantial step. (First year students, look back to the "attempt" section of your Criminal Law outline.)

The result: The defendant was held to answer.

Track record: 2-0.

Note: The reason the prosecution referred to this as "the peanut case" is an exercise left to the law student.

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