Prelims: Qualifying Police Expertise as to Narcotics

In the Office of the District Attorney of the County of Los Angeles, in the preliminary hearings unit, most of the preliminary hearings that will be assigned to certified law clerks will be drug cases, dealing with possession, possession for sale, and transportation. An important element of such charges is the identification of the drugs.

Most times, with experienced public defenders and private defense attorneys, there will be a stipulation as to lab receipts which identify evidence as drugs. However, there has been a trend for "baby PDs" not to stipulate to anything. In such situations, a testifying police officer may nevertheless be qualified as to his "scientific" qualifications for identifying the narcotics. The elements required for establishing such expertise is generally laid out in People v. Wesley, 224 Cal. App. 3d 1130, 1146 (Cal. Ct. App. 1990):

Officer Qualls was properly qualified as an expert in the field of narcotics, specifically cocaine; thereafter, when he testified that he examined the "item" given to him by Sergeant Kirkpatrick (subsequently, the identity of the rock was traced in Qualls's testimony from Kirkpatrick to him, to defendant, to Carter, to Alaniz, then to exhibit 1) and, based upon his training and experience, it was his opinion it was rock cocaine, the objection imposed was not that Qualls was not qualified to give an expert opinion but that there was "insufficient foundation for a scientific conclusion," which was overruled. Later the rock of cocaine was received in evidence without objection. On his motion to dismiss before the magistrate, defense counsel argued only that Qualls was never asked "the identity of the rock before the court so there is no indication of that rock's even suspected nature." Of course, he was in error and the magistrate had the record read. But the nature of the substance was neither argued nor mentioned by defense counsel on his motion to set aside information. Nevertheless, Judge Alston commented he did not think the rock was analyzed, and found "There is no competent testimony here as to what the substance was that is involved." Belatedly, respondent here argues that Qualls's expert testimony that the "item" was rock cocaine is not sufficient without chemical analysis testimony. The magistrate was satisfied with the expertise and the opinion of Officer Qualls, and for the purpose of holding defendant to answer, we are satisfied the evidence is sufficient.

For purposes of preliminary hearings, the typical prosecution script runs like this:

• Officer, how many times have you testified in Superior Court as to ?
• How many times have you made arrests or been involved in a investigation?
• Of that number, how many times have you booked evidence or been present for booking?
• Did you have an opportunity to see lab results after booking?
• What percentage of times has the lab receipt corroborated your initial belief?
• What did you believe the evidenced booked under as item number to be?

Defense intransigence isn't always the reason to go through Wesley qualification, however. Sometimes, the lab does not test all of the evidence. Thus, even if the defense attorney is willing to stipulate to the lab receipts, you still cannot account for all of the evidence recovered. In such a case, too, it is better to go through Wesley qualification.

The Stud had a chance to do this for what turned out to be his final preliminary hearing as a volunteer at the DA's office. (The Stud wrapped up on volunteering last Friday.) The PD was a friend from Loyola, so he was willing to stipulate; however, one of the items was not in fact analyzed in a lab, so the Stud qualified the testifying officer under Wesley, and got the testimony in.

In fact, the court was quite busy that day, so the judge had been rather short with the attorneys. However, when the end of the day came, the judge did bid the Stud farewell with praise: "Good job on the prelim today." Thank you, Your Honor!

Track record: 5-0.

Prelims: Laying the Foundation; Bickering Defense Counsel

As I mentioned in a previous post, the elements are the most important thing. One thing that may be easy to overlook, particularly if you've become comfortable with preliminary hearings on the prosecution side, is that you must still establish that a police witness is, in fact, a police officer. Furthermore, in California, you should also establish the the officer has been a peace officer for more than 5 years, or has been POST-certified, so that he may, under Prop. 115, testify as to what others have said to him without such testimony being inadmissible hearsay.

The Stud took on a two-defendant narcotics sales case. The defendants were, essentially, the supplier and the hook, and the police witness was an undercover buyer. The Stud had laid out the basic facts of the case in his notes, but forgot at the beginning of direct examination to ask the officer what his occupation and assignment were, and the length of time for which he has been a peace officer. However, the Stud did recover and laid the foundation a little bit later on, and the defense attorneys were very nice about not giving him crap about it.

The case really became interesting later on, as the defense attorneys tried to shift the blame away from their respective clients to the other's client. In doing so, both attorneys failed to object when the officer, in answering their question, stated a pertinent piece of testimony that established who the supplier was. As for the hook, there was little his attorney could do, because the fact was that drugs and money (a pre-recorded $10 bill) had exchanged hands. The Stud and his supervising DDA were smiling at each other as the defense attorneys did what they had to do.

So, the morals of today are: (1) Always have a list of questions or a checklist of elements, even if you think you won't forget, especially when your experience is limited to one or two prelims a week; and (2) enjoy when defense attorneys try to blame each other's clients.

The result: The defendants were held to answer.

Track record: 4-0.

Prelims: Disruptive Behavior

The court the Stud was in today held three preliminary hearings, on three separate cases involving the same person for the same type of offense. Before the judge could even call the first of the cases, the defendant began yelling, being disruptive, demanding to be let go, and then letting loose a volley of obscenities aimed at the court, startling the court somewhat.

The defendant was remanded to lock-up, and there followed much discussion as to what to do next. The prosecution and defense had different ideas, but all agreed that the defendant's conduct was most improper. Upon further review of the histories of the cases, it was found that the defendant had previously been sent to a special court to determine his competence to stand trial; and that court had ruled that he was competent. Then, off the record, the prosecutor revealed that a sheriff's deputy who was also a witness in one of the cases had commented to him about "playing the game", about his desire to delay the court because the system was never going to be fair to him to begin with.

Eventually, it was decided that the defense attorney would be permitted to admonish the defendant once more, including giving a warning that any further disruption would result in a limitation of his statutory right to be present at his own preliminary hearing. Although California law does provide defendants in felony cases the right to be present at their own preliminary hearings, it is statutory law, and under California Penal Code § 1043.5:

(b) The absence of the defendant in a preliminary hearing after the hearing has commenced in his presence shall not prevent continuing the hearing to, and including, holding to answer, filing an information, or discharging the defendant in any of the following cases: (1) Any case in which the defendant, after he has been warned by the judge that he will be removed if he continued his disruptive behavior, nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that the hearing cannot be carried on with him in the courtroom.

It is apparent this sort of behavior is not so uncommon after all. It certainly made for an interesting--and long!--Friday afternoon!

Prelims: Lining Up Elements

As you begin to do more prelims, you will discover that the elements are the most important thing, especially if you're on the prosecution. The Stud has not spoken at length to defense attorneys, but has noticed that they frequently go to the most insignificant details of the facts that would make more sense in a full trial. The Stud's best guess is that what the attorneys are doing is preserving issues in the record. You will find that defense attorneys, after putting on such a rigorous cross-examination, will then answer that there is no affirmative defense, but simply a motion to dismiss for lack of sufficiency of the evidence.

In a prelim that the Stud conducted today, the issue was possession for sale of marijuana. What complicated the case included the following facts: (1) there was no transaction observed involving the defendant; (2) there was another person in the residence (who is a co-defendant); and (3) the residence belonged to a third party, who has not yet been apprehended. However, the Stud focused on the establishment of probable cause through surveillance two weeks prior to the warranted search, and on the fact that the defendant was observed with what appeared to be a green leafy substance resembling marijuana (which the defendant threw upon the knock and announce by the police, and which was later recovered and confirmed to be marijuana) as well as a large amount of US currency consistent, in the opinion of the testifying officer based on his background, training and expertise, with possession for sale.

The rest, including where the other marijuana and other paraphernalia were discovered, were interesting and will probably be used at trial to establish a totality of the circumstances, but were not significant for the purposes of a preliminary hearing.

The result: The defendant was held to answer.

Track record: 3-0.

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.

Volunteering at the DA's Office

The Stud does not yet have a job lined up, and his grades are not the best, so he decided to do something practical and get some trial experience. So he got a gig volunteering at the office of the District Attorney of the County of Los Angeles, with the Preliminary Hearings Unit.

In order to qualify to present before a judge, a law student must be certified by the State Bar of California.

On Friday 22 February 2008, the Stud performed his first preliminary hearing. It was a simple possession for sale case, so it was fairly straightforward. Result: Held to answer. The Stud is now 1-0 in preliminary hearings.

If you're interested in being certified in the State of California, check out the FAQ.