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Court of Appeal, Second District, Division 4, California.

The PEOPLE, Plaintiff and Appellant, v. Pete Garcia CASTRO, Defendant and Respondent.

Cr. 26445.

Decided: August 26, 1975

Joseph P. Busch, Dist. Atty. of Los Angeles County, Harry B. Sondheim, Head, App. Div., Arnold T. Guminski, Deputy Dist. Attys., for plaintiff and appellant. Norman W. DeCarteret, Sherman Oaks, under appointment by the Court of Appeal, for defendant and respondent.

Order Received Too Late To Permit Deletion.

Absent showing that defendant personally stipulated to commissioner acting as temporary judge at preliminary examination, any stipulation by defense counsel alone would have been ineffective.

Constitutionally, a duly qualified judge must preside over preliminary examination.

Right to duly authorized judge is as significant part of criminal trial as is right to jury trial, right to cross-examine witnesses and right against self-incrimination.

Defendant's participation without objection in preliminary examination proceedings did not amount to de facto stipulation that municipal court commissioner who presided at preliminary examination was sitting as temporary judge, at least where defendant raised his objection as soon as case reached superior court, raised it in same and not in collateral proceedings, and defendant had accepted no benefits from commissioner's order.

The People appeal (pursuant to subparagraph (1) of subdivision (a) of section 1238 of the Penal Code) from an order granting a motion (under section 995 of the Penal Code) to set aside an information. For the reasons set forth below, we affirm the order.

The sole ground for the trial court's order, and the only ground herein involved, is the contention that the order made in municipal court by a commissioner of that court, holding defendant to answer, was void because the commissioner was not sitting as a temporary judge pursuant to a stipulation of the parties.

It is admitted that no record of the proceedings in the municipal court affirmatively shows any such stipulation and the declaration of defendant that he had not entered into any such stipulation stands uncontradicted. Defendant was represented at the preliminary examination by a deputy public defender. No declaration by him as to the existence or nonexistence of such a stipulation by him appears in the record.1

As we understand it, the People's position is: (a) that, absent an affirmative denial, it must be assumed that the deputy public defender had stipulated to the commissioner acting as a temporary judge; and (b) that the participation, without objection, by defendant and his counsel, in the preliminary examination proceedings amounted to a ‘de facto’ stipulation.


We do not regard the absence of proof that there had not been a stipulation by the public defender as material. A preliminary examination is an essential part of a criminal case. Constitutionally a duly qualified judge must preside over it. (People v. Tijerina (1969) 1 Cal.3d 41, 81 Cal.Rptr. 264, 459 P.2d 680; Amos v. Superior Court (1960) 182 Cal.App.2d 343, 6 Cal.Rptr. 252.) Whatever may be the authority of counsel in a civil case to stipulate to a temporary judge (Cf. Estate of Soforenko (1968) 260 Cal.App.2d 765, 67 Cal.Rptr. 563), the waiver of the right to a regular judge must, in a criminal case, be participated in by the defendant personally. The right to a duly authorized judge is as significant part of a criminal trial as is the right to jury trial, the right to cross-examine witnesses, and the right against self-incrimination. It follows that, absent a showing that defendant personally had stipulated to the commissioner acting as a temporary judge, any stipulation by his counsel alone would have been ineffective.


We point out that nothing in the record before us shows that defendant knew that the individual presiding over his preliminary hearing was not a duly appointed judge for the court,2 or that, if he did know the presiding official was a commissioner and not a regular judge, that he knew that he could demand the presence and participation of a regular judge. On such a record, we find it difficult to accept the People's contention that defendant had, by participating in the preliminary examination, in some way accomplished a ‘de facto’ stipulation.

The People rely on the decision of Division Five of this court in People v. Oaxaca (1974) 39 Cal.App.3d 153, 114 Cal.Rptr. 178. But Oaxaca involves a factual situation far different from the case at bench. In Oaxaca, defendant, represented by counsel, had entered into a plea bargain on two charges and had accepted the benefits of that bargain for some time. The opinion in Oaxaca expressly limits its finding of a de facto stipulation to the peculiar facts of that case:

‘We limit our decision to the instant case: (1) a complete plea bargain; (2) representation by counsel; (3) a qualified commissioner;3 (4) an acceptance of the sentence by defendant after its rendition and his living with the conditions of probation for an extended period of time; (5) the attack upon the validity of the proceedings coming in a different and separate proceeding; (6) the participation by defendant and his counsel in all phases of the plea bargain proceedings, effectuating what was tantamount to a stipulation that the commissioner would sit as a temporary judge.’ (pp. 166—167, 114 Cal.Rptr. p. 187.)

By contrast, in the case at bench, the defendant promptly raised his objection as soon as the case reached the superior court, he raised it in the same and not in a collateral proceeding, and he has accepted no ‘benefits' from the commissioner's order. We do not extend the Oaxaca doctrine beyond the limits that that division itself placed on it.

The order granting the motion under section 995 and dismissing the information was correct; we affirm it.


1.  It is admitted that the commissioner was ‘qualified’ to act as a temporary judge if a proper stipulation had been entered into. (See Amos v. Superior Court (1960) 182 Cal.App.2d 343, 6 Cal.Rptr. 252.)

2.  We take judicial notice that, in a court system as large as that of Los Angeles County, not even justices of the appellate court know, without research, what persons are judges or commissioners or members of the bar.

3.  The reference here to a ‘qualified’ commissioner necessarily has the meaning that the commissioner was ‘qualified’ had he had a stipulation. See footnote No. 1, Supra.

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Docket No: Cr. 26445.

Decided: August 26, 1975

Court: Court of Appeal, Second District, Division 4, California.

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