ADAM v. SUPERIOR COURT OF CITY AND COUNTY OF SAN FRANCISCO

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Court of Appeal, First District, Division 5, California.

Mario ADAM aka Angel L. Rodriguez, Petitioner, v. The SUPERIOR COURT OF the CITY AND COUNTY OF SAN FRANCISCO, Respondent,

The PEOPLE of the State of California, Real Party in Interest. Roberto Ahmed PEREZ, Petitioner, v. The SUPERIOR COURT OF the CITY AND COUNTY OF SAN FRANCISCO, Respondent,

The PEOPLE of the State of California, Real Party in Interest. Darrell Leroi CROUD, Petitioner, v. The SUPERIOR COURT OF CONTRA COSTA COUNTY, Respondent, The PEOPLE of the State of California, Real Party in Interest.

A021421, A021891 and A022104.

Decided: July 26, 1983

Peter Bresciani, Tamburello, Hanlon & Bresciani, San Francisco, for petitioner in A021421. No Appearance for respondent in A021421, A021891 or A022104. John K. Van De Kamp, Atty. Gen., Ronald E. Niver, Thomas A. Brady, Deputy Attys. Gen., San Francisco, for real party in interest in A021421. Jeff Brown, Public Defender, Peter G. Keane, Chief Atty., Grace Lidia Suarez, Lisa Dewberry, Deputy Public Defenders, San Francisco, for petitioner in A021891. Ephraim Margolin, Sandra Coliver, California Attorneys for Criminal Justice, San Francisco, for amicus curiae on behalf of petitioner in A021891. John K. Van De Kamp, Atty. Gen., Linda Ludlow, Thomas A. Brady, Deputy Attys. Gen., San Francisco, for real party in interest in A021891 and A022104. Patrick R. Murphy, Public Defender, David O. Headley, Deputy Public Defender, Tom Riordan, Defender, Richmond, for petitioner in A022104.

New subdivision (b) of Penal Code section 995a authorizes a superior court, hearing a motion under Penal Code section 995 to set aside an information, to hold the section 995 motion in abeyance and to “order further proceedings to correct errors alleged by the defendant if the court finds that such 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․”

Each of these three otherwise unrelated writ petitions raises the question whether an asserted error at preliminary examination was “minor” within the meaning of the new subdivision.   The question is squarely presented in only one of the three proceedings.   We conclude that (absent more explicit guidance from the Legislature) the question must be answered, case by case, not in abstract philosophical terms but rather by determining (1) how complex and time-consuming the correction process may reasonably be expected to be, and (2) whether the correction process will require the magistrate to perform substantial additional adjudicatory functions.   Specifically, we hold on the facts of the three matters before us:

(1) That in A021421, Adam v. Superior Court, the magistrate's ruling limiting defense cross-examination of a victim was error which cannot be characterized as minor within the meaning of the new subdivision;  and,

(2) That in A021891, Perez v. Superior Court, and A022104, Croud v. Superior Court, the “minor error” question need not be reached because the perceived “error” in fact was not error.

In each of the three matters before us, the defendant having been held to answer to felony charges following a preliminary examination, moved in superior court to set aside the information, under section 995, on the ground that he had not been legally committed or that he had been committed without reasonable or probable cause.   In each case the superior court, upon the People's motion, ordered the cause remanded to the committing magistrate, under the correction procedure specified in subdivision (b) of section 995a, for correction of the asserted error.   Each defendant has petitioned this court for relief by extraordinary writ, arguing that the error in his case could not be deemed “minor” and that the superior court should instead have set aside the information.

A021421—Adam v. Superior Court

Mario Adam is accused of murdering one Barnes and of attempting to murder one Garrett.   At preliminary examination the People's primary witness was Garrett, who testified that he and Barnes had two previous confrontations with Adam and one Clemente.   On the second occasion Garrett and Barnes had fought with Adam and Clemente, and had challenged Adam and Clemente to come to a specified location in San Francisco should they wish to pursue the matter further.   Garrett thereafter renewed his challenge to Adam through a third party.   Days later, at 11 p.m., Garrett and Barnes were at the specified location when Adam and Clemente approached them.   Garrett heard a shot, saw a gun in Adam's hand and concluded that Adam had shot Barnes.   Then Garrett was struck by a bullet.

Other testimony established that Barnes died of a gunshot wound and generally corroborated Garrett's account.   There was direct testimony that Garrett had been holding a wine bottle but that neither Barnes nor Garrett was otherwise armed.

In the course of cross-examination of Garrett, defense counsel informed the magistrate that Garrett had a record of prior criminal acts and that counsel intended to question Garrett, upon the authority of Evidence Code section 1103, subdivision (a)(1), concerning his “propensity for violence and weapon use.”   Defense counsel stated that he intended to establish self-defense and that his proposed line of cross-examination had two immediate tactical purposes:  To identify witnesses who could be called at trial and to persuade the magistrate that Adam should not be held to answer.   Defense counsel also suggested that the cross-examination would also be permissible in light of the provision of article 1, section 28, subdivision (d) of the California Constitution (Proposition 8 on the June 1982 ballot) that with specified exceptions “․ relevant evidence shall not be excluded in any criminal proceeding ․”

The magistrate ruled that he would not permit the proposed cross-examination.   The magistrate indicated that he believed the evidence would be admissible at trial but, in effect, that he did not consider the offer probative enough to be admissible at preliminary examination.   He declined the prosecutor's invitation to base the ruling expressly on Evidence Code section 352.

Six witnesses testified and the preliminary examination required parts of two days to complete.   Adam was held to answer.   In superior court Adam moved to set aside the information on the ground that his right to cross-examine in support of an affirmative defense had been improperly denied by the magistrate.   Following a hearing, the superior court ordered the matter remanded “pursuant to Penal Code [section] 995a(b)(1) for further proceedings:  re taking of Evidence Code Section 1103 testimony from ․ Garrett concerning past acts or conduct relating to the use or possession of deadly weapons and violence as it applies to the issue of self-defense.”

Implicit in the superior court's order are conclusions (1) that the magistrate had erred, and (2) that the error was in the requisite sense “minor.”

We agree that the magistrate erred.  “It is well established that the defendant at a preliminary examination has the right to examine and cross-examine witnesses for the purpose of overcoming the prosecution's case or establishing an affirmative defense.”  (Jones v. Superior Court (1971) 4 Cal.3d 660, 667, 94 Cal.Rptr. 289, 483 P.2d 1241;  cf. Jennings v. Superior Court (1967) 66 Cal.2d 867, 878–879, 59 Cal.Rptr. 440, 428 P.2d 304.)   “ ‘[W]here the subject of cross-examination concerns the matter at issue there can be no doubt that the refusal to permit such question results in a denial of a fair hearing ․’ ”  (Jennings v. Superior Court, supra, at p. 879, 59 Cal.Rptr. 440, 428 P.2d 304.)   The strength or weakness of the evidence the defendant is able to generate by such examination or cross-examination is for the magistrate to evaluate once the examination has been completed.   The magistrate's belief that the evidence would be admissible at trial highlights the error.   Under Jennings and Jones, evidence which would be admissible in support of an affirmative defense at trial should, if tendered, be admitted and considered at preliminary examination.

But we hold that the error was not “minor” within the meaning of subdivision (b) of section 995a.

It should be stressed at the outset that the function of the magistrate at preliminary examination is, within its specified scope, adjudicatory in the sense that the magistrate must give careful consideration to and exercise reasoned judgment upon the evidence and arguments presented and must synthesize the evidence and applicable law to draw legally significant ultimate conclusions.  (Jennings v. Superior Court supra, 66 Cal.2d 867, 880, 59 Cal.Rptr. 440, 428 P.2d 304;  cf. Jaffe v. Stone (1941) 18 Cal.2d 146, 150, 114 P.2d 335.)

Once the holding order is made or denied, however, it has been the law that the magistrate cannot in the same proceeding resume his or her adjudicatory function either sua sponte or upon direction of a higher court.   In Burnett v. Superior Court (1974) 12 Cal.3d 865, 117 Cal.Rptr. 556, 528 P.2d 372, the defendant was accused of robberies.   The evidence tendered at preliminary examination to identify him as the perpetrator was weak, and the superior court, instead of ruling on the defendant's motion to set aside the information, purported to remand the matter to the magistrate to take additional testimony.   The Supreme Court ordered the superior court to rule on the defendant's motion, concluding among other things that a remand to the magistrate was authorized, by Penal Code sections 997 and 998, only after the granting of the motion to set aside the information and only “․ for the purpose of correcting a procedural irregularity or to correct an inadvertence which is clerical in nature.”  (Id., at pp. 870–872, 117 Cal.Rptr. 556, 528 P.2d 372.)  “A different result follows ․ when the defect in a commitment is judicial in nature, that is, the result of a judicial act.   Such a defect cannot be cured by the resubmission of the cause to the magistrate․  [¶]  [A] judicial error ․ is beyond his power to correct.”   (Id., at p. 873, 117 Cal.Rptr. 556, 528 P.2d 372.)   The Supreme Court held that if the magistrate had erred in finding the identification evidence sufficient, the error was judicial in nature and hence “․ properly challenged on the motion ․ to set aside the information.”  (Ibid.)

Against this background, the Legislature in 1982 considered Assembly Bill 2984, designed to broaden a superior court's power to remand a pending felony proceeding to the committing magistrate for correction of errors.   As introduced the bill would have added the following new subdivision (b) to section 995:

“Without setting aside the information, the court may, in its discretion, remand the cause to the committing magistrate for further proceedings, or itself sit as a magistrate and conduct further proceedings, which it deems appropriate, if the court finds that the errors alleged by defendant could be expeditiously cured or corrected by further proceedings.   Any further proceeding held pursuant to this subdivision may include the taking of testimony and shall be deemed to be part of the preliminary examination.”

As enacted, subdivision (b) of section 995a shows that Assembly Bill 2984 had been substantially amended.1  The amendments

¶ Move the remand provision from section 995 to section 995a (which theretofore provided for correction of formal defects on the face of the indictment or information).

¶ Permit remand only “upon motion of the prosecuting attorney.”

¶ Limit the remedy to “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․”

¶ Permit the superior court itself to “sit as a magistrate” for the purpose of the further proceedings only if the parties agree.

¶ Require that the superior court, upon remanding to the original magistrate, state the perceived “minor errors” in the remand order.

¶ Permit recourse to the correction procedure only once with respect to any information.

¶¶ Provide that the correction proceedings shall not be deemed to extend the time within which a defendant must be brought to trial under Penal Code section 1382.

¶ Require that the superior court reserve its final ruling on the motion to set aside the information until the correction proceedings are completed.

¶ Anticipate writ review if “the [superior] court abused its discretion in utilizing the procedure set out in subdivision (b) of section 995a ․”

 In every case in which the procedure is invoked the initial inquiry must be whether there is a substantive or procedural defect relevant to the validity of the holding order.   If there is an error, the new statutory language provides on its face a three-part test for determining whether the error is “minor.”   In the order in which they might most efficiently be applied:

First, the error must be susceptible of being corrected “expeditiously.”

Second, the correction must not require “a rehearing of a substantial portion of the evidence.”

Third, the error must be one of “omission, ambiguity, or technical defect.”

Many kinds of error, correctable expeditiously and without rehearing substantial evidence but nonetheless significant by any other standard, might plausibly be characterized as “omission” or “ambiguity” if not “technical defect.”   Would such a result invariably be consistent with legislative intent?   The new language itself does not give a clear answer.   We hope the Legislature will see fit to clarify its intent either by providing a better definition of “minor” or by removing the word “minor” altogether.   Absent such clarification we must, under established principles, nevertheless seek to ascertain the legislative intent and interpret the statutory language in such a way as to give effect to that intent.  (Landrum v. Superior Court (1981) 30 Cal.3d 1, 12, 177 Cal.Rptr. 325, 634 P.2d 352;  People ex rel. Younger v. Superior Court (1976) 16 Cal.3d 30, 40, 127 Cal.Rptr. 122, 544 P.2d 1322.)

 While the Legislature obviously contemplated a correction procedure considerably broader than that which the Burnett court would have permitted,2 it also manifested by its amendments to Assembly Bill 2984 an intention to maintain strict limits upon the procedure.   The Legislature did not intend that the magistrate be called upon for substantial additional adjudicatory functions.   One indicator is that the new procedure permits (upon the parties' and court's agreement) the superior court itself to assume the role of magistrate for the purpose of making the corrections.   It is unlikely that the Legislature could have contemplated that the superior court could readjudicate substantial questions from a cold record.   It is also significant that the Legislature inserted in the new correction procedure no provision for setting aside the first holding order or for amendment of the pending section 995 motion to take account of a new and conceivably quite different holding order.   We conclude that an error which might be termed an “omission,” “ambiguity,” or “technical defect” nevertheless cannot be deemed “minor” within the meaning of the new subdivision if the correction process will require the magistrate to perform substantial adjudicatory functions.

 Adam argues in essence that the magistrate's error in this action was too fundamental to the integrity of the preliminary examination and to Adam's rights as a criminal defendant to admit of characterization as “minor.”   The People respond that Adam's prospects of success were not substantial enough to elevate the error to the status of “denial of a constitutional right.”   In our view the issue of what is “minor error” should be resolved not in terms of philosophical gravity, but rather by application of the tests described above.   Those two tests have not been met.

First, from the facts of record here, it does not appear reasonable to assume that this error could be corrected “expeditiously.”   All concede that Garrett has a long criminal record developed in several venues over a period of several years.   Renewed cross-examination of Garrett, even as circumscribed in the superior court's remand order, could lead directly to reasonable requests to call additional witnesses and even to recall witnesses previously heard.   In sum, on the face of this record there is substantial likelihood that correction of this error will prove to be both complex and time-consuming.

Second, we conclude that the further cross-examination ordered will inevitably require of the magistrate careful reassessment, and thus readjudication, of the “sufficient cause” issues.   Consideration of the new testimony, as it relates to previous evidence, will compel the magistrate to reweigh the merits of the case so as to reach an appropriate decision.

The error was not “minor.”   It follows that the superior court should have set aside the information in Adam's case.

A021891—Perez v. Superior Court

 Roberto Ahmed Perez was accused of selling cocaine to one Bruce, who was an undercover police officer.   Bruce was the People's only witness at preliminary examination.   He testified that he had gone to an area to purchase cocaine.   He encountered Perez and said, “I am looking for the guy who supplied me yesterday,” whereupon Perez said “follow me.”   Perez took Bruce to a room in which Perez obtained an aluminum foil bindle and handed it to Bruce.   Perez “stated twenty” whereupon Bruce gave Perez a $20 bill.   Bruce carried the bindle to the police department narcotics division where he booked it into evidence.   Bruce initially testified that he believed the bindle contained cocaine, but upon Perez' motion this testimony was ordered stricken unless Bruce's expertise could be established by way of foundation.

The prosecutor sought to qualify Bruce as an expert and obtained from him an enumeration of circumstances which, in Bruce's opinion, indicated that the substance was cocaine.   Bruce testified that he had made “[a]pproximately sixty, seventy” narcotics arrests and approximately 20 direct buys;  more than 10 of his arrests and approximately 5 of his buys had involved cocaine.   He had seen similar bindles in narcotic investigations approximately 100 times.   He had received formal training in narcotics recognition.   He said that cocaine “smells like stale urine and old socks.”   He said that he sniffed this bindle and that it smelled like stale urine.   He said that in appearance the rectangular aluminum foil bindle “is the same as three prior bindles of cocaine I purchased from the same address during that one week period.”   He acknowledged that he had seen other controlled substances packed in the same way.

The magistrate asked the prosecutor:  “I understand you are going to bring the chemist down?”   The prosecutor replied:  “I have attempted to, your Honor.   I get no response to the telephone.”

Thereafter the magistrate permitted the prosecutor, over objection, to ask Bruce directly concerning the identity of the substance.   At one point, Bruce said, “I can reach a conclusion but it has to be a qualified conclusion․  [¶] That I am not an expert and I can't perform a chemical test on it․  [¶] ․ I can just give you my impression of what it is.   I cannot testify as to a certainty.”   But ultimately Bruce agreed that “its crystalline form is typical of cocaine and it smells to be cocaine.”   The magistrate said, “I think that is all we need.”   Following cross-examination of Bruce, Perez was held to answer.

In superior court, Perez moved to set aside the information on the ground that at preliminary examination there was no competent evidence that the substance sold was cocaine.   The superior court implicitly concluded that there had been a failure of proof, but did not set aside the information;  instead the court granted the People's countermotion “for supplemental evidentiary proceedings” and remanded the action to the magistrate to take additional evidence.

Perez argues that omission of proof of an element of the charged offense cannot be “minor” within the meaning of section 995a.   Perez and amicus curiae add an argument (not made in the superior court) that to apply the new correction procedure to such an omission of proof would impermissibly allow the prosecutor an extra opportunity to correct failure of proof identified for him or her by the defense:  This would, Perez and amicus curiae contend, come “․ perilously close to compelling a defendant to aid in his own prosecution ․”  (Cf. People v. Belton (1979) 23 Cal.3d 516, 521–522, 153 Cal.Rptr. 195, 591 P.2d 485.)

We reach neither argument.   Upon the special facts of record in this case, we conclude that for purposes of preliminary examination there was no failure of proof and hence no error within the meaning of either section 995 or section 995a.  “Evidence that will justify a prosecution need not be sufficient to support a conviction.  [Citations.]  ‘ “Probable cause is shown if a man of ordinary caution or prudence would be led to believe and conscientiously entertain a strong suspicion of the guilt of the accused.” ’   [Citations.]”  (Rideout v. Superior Court (1967) 67 Cal.2d 471, 474, 62 Cal.Rptr. 581, 432 P.2d 197.)   Despite Bruce's apparent diffidence, his testimony was sufficient to support a “strong suspicion” that the substance in the bindle was cocaine.

Our conclusion should not be misunderstood.   We do not hold that Bruce's testimony would be sufficient, in light of decisions such as In re Waylon M. (1982) 129 Cal.App.3d 950, 952, 181 Cal.Rptr. 413, to sustain a criminal conviction.   Nor do we condone the case management reflected in the prosecutor's inability to produce the forensic chemist—a routine and almost invariably brief witness in any controlled substance proceeding—at the preliminary examination.   Prosecutors will rely at their peril on the ability of the investigating officer to identify the substance at issue even for purposes of preliminary examination;  the better practice would be to call the forensic chemist in every instance.

We hold simply that in the circumstances of this case the nature of the substance was adequately shown for purposes of preliminary examination.

It follows that Perez was entitled neither to have the information set aside nor to a remand order.   He nevertheless received a remand order;  he cannot be heard to complain of it.

A022104—Croud v. Superior Court

 Darrell Leroi Croud was accused by felony complaint of selling marijuana (Health & Saf.Code, § 11360).   The evidence at preliminary examination was that Richmond police had undertaken a surveillance program to crack down on street sales of controlled substances.   On October 13, 1982, officers concealed near the intersection of 4th Street and Maine Avenue in Richmond, a notorious street-sale area, saw Croud apparently sell baggies of marijuana to several passing motorists.   Police alerted by radio stopped the cars and arrested the occupants as they left the area, finding baggies of marijuana in the cars on several occasions.   Both surveillance officers and one of the arrest-unit officers firmly identified Croud in court as the individual seen apparently selling marijuana on October 13.

Four times in the course of the preliminary examination, Croud's attorney attempted to question police witnesses about gang activity in the 4th and Maine area.   First, while cross-examining one of the two surveillance officers, counsel asked:  “To your knowledge, is Mr. Croud affiliated with Crips, the local gang there?”   The answer was “Not to my knowledge.”   The next question was “To your knowledge, does Crips allow anybody to sell marijuana who is not in Crips?”   The magistrate sustained the People's objection that the answer would be irrelevant and denied counsel leave to make an offer of proof.   The matter came up again during cross-examination of one of the arrest-unit officers:  Counsel asked whether 4th and Maine is “the central gathering place of the gang Crips”;  when the officer replied that he had no “background involving gang crimes” and therefore would not have personal knowledge, counsel asked which officers would “have more personal knowledge about Crips.”   The People objected;  the objection was sustained;  counsel briefly complained that he had not been allowed to put his questions to officers who “knew about Crips, and I was not allowed to ask them about what was clearly within their knowledge and highly relevant to the defense of Mr. Croud.”   On the third occasion, cross-examining another arrest-unit officer, counsel asked general questions without objection;  the witness denied knowledge of “the gang Crips” or of “any gang that has their headquarters at 4th and Maine.”   On the fourth occasion, cross-examining yet another arrest-unit officer, counsel obtained an admission that the officer was familiar with Crips, but the officer then testified that Crips had been in decline:  “[T]o call it a gang, per se, now would be false.   There are some members that still live in the area.”   When counsel attempted to press the inquiry, the magistrate again sustained a relevance objection but then permitted counsel to make an offer of proof.   The offer was as follows:

“The offer of proof is that it is my understanding that different gangs control different neighborhoods.   Different gangs control different businesses.  [Fourth] and Maine is controlled largely by the gang Crips.   People who are in other gangs don't hang around 4th and Maine.   Crips doesn't hang around other areas.   Crips hang around 4th and Maine.   It is my understanding that these gangs support themselves by selling nickel bags of marijuana and that somebody who is not affiliated with or somehow connected with the gang Crips could not go into Crips headquarters, which is their headquarters at 4th and Maine, this parking lot, this little place we have heard about, this apartment house.   Another gang member or another person not somehow affiliated with the gang Crips could not go there and start hoarding in on the business at that spot.”

The magistrate ruled:

“That is not relevant at this point.   If your client wants to testify to that at a later point, fine.   But you can't get that from this witness, and your offer of proof is not sufficient as far as the cross-examination of this witness.”

The preliminary examination then proceeded to its conclusion and Croud was held to answer.

In superior court Croud moved to set aside the information, arguing that the magistrate's refusal to permit him to explore the Crips matter had deprived him of rights spelled out in Jennings v. Superior Court, supra, 66 Cal.2d 867, 59 Cal.Rptr. 440, 428 P.2d 304 and cognate cases.

At hearing on Croud's motion the superior court said:

“[T]he District Attorney has an election here.   If the District Attorney makes the proper motion under 995a, I'm going to remand the case to the magistrate to permit further examination;  and if the District Attorney does not deem that appropriate, the motion would be granted.

“I think that it should go under the 995a, but as you notice, that requires the motion by the People;  and I think that the defect can be cured very easily by allowing the defense counsel a reasonable opportunity of conducting a more complete examination of the witness.”

The prosecutor immediately moved for remand under section 995a;  over Croud's objection the superior court, observing that “[t]his is a remedial legislation designed for a purpose of this kind,” remanded the matter to the magistrate.

Croud argues that Jennings error cannot be “minor” within the meaning of section 995a.   We need not reach that analysis in Croud's case.   There was no error to be classified.  Jennings itself makes explicit that “ ‘[n]ot [in] every instance in which a cross-examiner's question is disallowed will defendant's right to a fair hearing be abridged, since the matter may be too unimportant [citation], or there may be no prejudice [citation], or the question may involve issues which can be brought up at a more appropriate time [citation]․’ ”  (Jennings v. Superior Court, supra, 66 Cal.2d 867, 879, 59 Cal.Rptr. 440, 428 P.2d 304.)   At least three eyewitnesses placed Croud at the intersection of 4th and Maine, and the evidence that he was selling marijuana there was quite strong.   We cannot attach dispositive significance to the fact (assuming Croud can prove it) that the Crips would not have wanted him to be there.   The magistrate's rulings were not error in these circumstances.

It follows that, as in Perez' case, the remand order has given Croud more relief than he could properly have demanded.   He is entitled to no additional relief.

The correction procedure provided for in section 995a can be invoked only upon motion of the prosecutor.   We note than in both the Adam and Croud matters the prosecutor's motion was made at the invitation of the superior court.   In Croud, the invitation tended to confront the prosecutor with a dilemma:  The court made clear that it perceived an error and that unless the prosecutor would move for remand under section 995a, the court would dismiss under section 995.   It was made plain to the prosecutor that it would be idle to argue in that court that there was no error.   But by making what must in these circumstances be deemed a forced motion for remand, the prosecutor barred himself from arguing here, in appropriate form, that because there was no error the superior court should be directed simply to deny the initial motion to set aside the information and to proceed to trial.   Because such an application is not before us we are reluctant to make such an order, although in our view the sensible procedure in both Perez and Croud would be for the superior court to proceed directly to a ruling, consistent with the views we have expressed, on the section 995 motion.

The Legislature's desire to reduce delay in the process of moving a felony charge from preliminary examination to trial is commendable, but in implementing its desire it must of course be wary of introducing complexities elsewhere in the judicial process.   If the provisions of new subdivision (b) of section 995a will have an appreciable tendency to generate more pretrial writ applications, for example, the net effect may be to increase rather than to reduce delay.   We have suggested above that the new subdivision might be more readily and less controversially applied if the Legislature will reconsider the term “minor.”   In addition, the Legislature may wish to consider making the new procedure available not only on motion of the prosecutor, but also at the instance of the defense or of the court itself.   Such a change would permit both parties, and the court, to preserve options and more effectively to deal with the kinds of problems the Legislature had in mind.

In A021421, Adam v. Superior Court, let a peremptory writ of prohibition issue commanding respondent municipal court to take no further action herein and commanding respondent superior court to take no further action herein other than to set aside the information and to dismiss the charges.

In A021891, Perez v. Superior Court, the stay of all proceedings heretofore ordered is dissolved, the alternative writ is discharged, and the petition for writ of mandate or prohibition is denied.

In A022104, Croud v. Superior Court, the stay of all proceedings heretofore ordered is dissolved, the alternative writ is discharged, and the petition for writ of prohibition is denied.

FOOTNOTES

1.   As enacted new subdivision (b) of Penal Code section 995a reads as follows:“(b)(1) Without setting aside the information, the court may, upon motion of the prosecuting attorney, order further proceedings to correct errors alleged by the defendant if the court finds that such 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.   The court may remand the cause to the committing magistrate for further proceedings, or if the parties and the court agree, the court may itself sit as a magistrate and conduct further proceedings.   When remanding the cause to the committing magistrate, the court shall state in its remand order which minor errors it finds could be expeditiously cured or corrected.“(2) Any further proceedings conducted pursuant to this subdivision may include the taking of testimony and shall be deemed to be a part of the preliminary examination.“(3) The procedure specified in this subdivision may be utilized only once for each information filed.   Any further proceedings conducted pursuant to this subdivision shall not be deemed to extend the time within which a defendant must be brought to trial under Section 1382.”  (Stats.1982, ch. 1505, § 4.)The Legislature added a new subdivision (b) to section 995:“(b) In cases in which the procedure set out in subdivision (b) of Section 995a is utilized, the court shall reserve a final ruling on the motion until those procedures have been completed.”  (Stats.1982, ch. 1505, § 3.)The Legislature also amended Penal Code section 999a, which states procedural rules for review by writ of prohibition, to add to the list of grounds on which a petition for such a writ might be predicated the words “․ or that the court abused its discretion in utilizing the procedure set out in subdivision (b) of Section 995a, ․”  (Stats.1982, ch. 1505, § 5.)

2.   We are aware that another Court of Appeal, in Parisi v. Superior Court (1983), 144 Cal.App.3d 211, –––, 192 Cal.Rptr. 486, has concluded in dictum that the new subdivision “appears to be little more than a codification of ․ Burnett․”  With all respect we have concluded that the Legislature was not so influenced by Burnett as Parisi's language would suggest.

LOW, Presiding Justice.

KING and HANING, JJ., concur.