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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. Jose DE JESUS PINA, Defendant and Appellant.

Crim. F003438.

Decided: April 23, 1985

Frank O. Bell, Jr., State Public Defender, under appointment by the Court of Appeal, and Antonia D. Radillo, Deputy State Public Defender, for defendant and appellant. John K. Van de Kamp, Atty. Gen., W. Scott Thorpe, Krista J. Kmetz and David De Alba, Deputy Attys. Gen., for plaintiff and respondent.



The parties to this appeal offer this court an opportunity to declare whether the failure to provide a defendant with a separate interpreter at the preliminary hearing compels a reversal of the judgment of conviction without a showing of prejudice at trial.1  As we shall explain, any opportunity this court might have had to decide this issue was foreclosed by appellant's failure to first pursue a motion to dismiss the information under Penal Code section 995.2

An information was filed charging appellant with one count of sodomy by means of force (Pen.Code, § 286, subd. (c)) and one count of false imprisonment (Pen.Code, § 236).   These charges followed a preliminary hearing in which only one Spanish-English interpreter was provided for both appellant and the Spanish-speaking victim.   No motion to dismiss the information (§ 995), however, was filed by appellant challenging this interpreter arrangement.

At trial separate interpreters were provided for appellant and the victim.   The jury returned guilty verdicts on both counts.

An upper term sentence of eight years was imposed on the sodomy count with a concurrent lower term sentence of three years for false imprisonment.


Section 996 states the general rule regarding a defendant's failure to make a section 995 motion prior to an appeal:

“If the motion to set aside the indictment or information is not made, the defendant is precluded from afterwards taking the objections mentioned in Section 995.”

Errors as critical as a trial court's failure to provide the defendant with counsel at the preliminary hearing have been held waived for failure to file a section 995 motion.  (See People v. Harris (1967) 67 Cal.2d 866, 870, 64 Cal.Rptr. 313, 434 P.2d 609.)

Appellant urges that People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 165 Cal.Rptr. 851, 612 P.2d 941 allows appellate review of pretrial errors even if no section 995 motion has first been filed if appellant can demonstrate prejudice.   This is an incorrect reading of Pompa-Ortiz.   While the defendant's section 995 motion is noted somewhat matter-of-factly in that case, it is the very cornerstone of that opinion.   The Pompa-Ortiz court cites People v. Harris, supra, 67 Cal.2d 866, 64 Cal.Rptr. 313, 434 P.2d 609 with approval;  its holding neither expressly nor impliedly extends an appellate court's power to review pretrial errors absent a prior section 995 motion.   In short, we read the Pompa-Ortiz holding as assuming that the defendant has already attempted to alleviate his claimed prejudice via a section 995 motion.

Appellant, having failed to file a section 995 motion, is foreclosed from relief on appeal, if any, for the lower court's failure to provide him with a personal interpreter at his preliminary hearing.

The judgment is affirmed.


1.   We have already intimated our position on the right to an interpreter at the preliminary hearing in People v. Rioz (1984) 161 Cal.App.3d 905, 207 Cal.Rptr. 903.  (Also see People v. Carreon (1984) 151 Cal.App.3d 559, 198 Cal.Rptr. 843;  People v. Menchaca (1983) 146 Cal.App.3d 1019, 194 Cal.Rptr. 691 and People v. Chavez (1981) 124 Cal.App.3d 215, 177 Cal.Rptr. 306.)

2.   All code references are to the Penal Code unless otherwise stated.

FRANSON, Acting Presiding Justice.


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