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In a resounding victory for the criminal defense bar, the supreme court denied review of Magallan v. Superior Court (2011), 142 Cal. Ap. 4th 1444, in June of this year.  Every defense attorney should know about this case, that is, at least if you’re interested in having that feeling of righteous indignation when the court says it can’t be bothered with you and the accused person who may or may not be holding your hand.

Defendant Arnulfo Magallan (“Magallan”) was charged with felony possession of a controlled substance under California Health & Safety Code Section 11377(a) as a  result of a warrantless search of his residence where methampetamines were found.  On June 30, 2008, prior to the preliminary hearing examination, his attorney filed an informal discovery requesting audio recordings of 911 calls, dispatch communications and computer logs for the purpose of using the requested discovery at a motion to suppress evidence hearing (Penal Code Section 1538.5(f)) which would be conducted at the same time as the preliminary hearing.  The defense attorney specifically wanted to “confront and cross examine the arresting officers” relating to the sequence of events which led to the warrantless search.

A formal discovery request was filed nearly three months later.  The prosecutor answered: Why should I care and how is anything helpful to you relevant to me?  More or less.  The deputy district attorney said there was no statutory obligation to discovery unless it is requested 30 days before trial (See 1054.1 below), and that the prosecutor did not intend on using the requested discovery at trial anyway.  An understanding judge who may have felt that warrantless searches of homes should not be taken lightly, ordered the discovery turned over to the defense.  A higher court told the judge to stop the madness, the defense attorney filed his writ, and now we’re reading the opinion.

Penal Code Section 1054 is the discovery statute.  Section 1054.1 provides that “no discovery shall occur in criminal cases except as provided by this chapter, other express statutory provisions, or as mandated by the Constitution of the United States.”  Also, under Section 1054.7, the “disclosure required under this chapter shall be made at least 30 days prior to the trial…”

Accordingly, the Attorney General’s Office argued that since the preliminary hearing is not a trial, a prosecutor cannot be ordered to turn over pre-preliminary hearing discovery, at least under 1054.1.  This court disagreed, citing language in Holman v. Superior Court(1981) 29 Cal. 3d 480, 485, that a discovery request is not necessarily “unavailable or inappropriate” if there is a “…showing that such discovery is reasonably necessary to prepare for the preliminary examination…”  Id.  Also, the court observed that “pretrial discovery is aimed at facilitating the swift administration of justice, not thwarting it.”  Id.

In our case, the court decided that the defense attorney made a sufficient record as to why the discovery should be turned over, and also noted that “the prosecution’s attempt to delay discovery of this information could only thwart justice rather than facilitate its swift administration.”  I am sure everyone at the district attorney’s office was happy to read that.

Further, Section 1538.5(f) is the statutory vehicle to move to suppress evidence obtained in violation of Fourth Amendment rights at a preliminary hearing.  Id. In People v. Superior Court (Mouchaourab) 2000, 78 Cal. App. 4th 403, where there was a similar issue of providing discovery that was not expressly authorized under statutory authority, the court held as follows: “It defines common sense to think that the Legislature intended to provide rights under these statutes but at the same time denied the defendant any means to enforce those rights.”  Id. at 408.  Thus, this court indicates that in order for 1538.5(f) to have meaning in our case, the criminal defense attorney should have access to discovery materials needed to effectively cross examine the officers to establish a Fourth Amendment violation.  Anything less would turn 1538.5(f) toothless.

Finally, the court also sides with Mouchaurab’s concurring analysis that when a showing has been made, a defendant has a due process right to discovery under the California Constitution.  Mouchaourab, supra, 78 Cal. App. 4th at 441.  Accordingly – on account of the record made by the defense attorney in this case – for Magallan to have a “full and fair opportunity to litigate his suppression motion” this court held that the requested discovery be turned over prior to the preliminary hearing.

Remember this case.  Make an effective record.  Get your discovery and defend your client.

Please contact Sostrin Law Offices if you have any questions.

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