Filed 7/30/18




                               CERTIFIED FOR PUBLICATION
                      APPELLATE DIVISION OF THE SUPERIOR COURT
                     STATE OF CALIFORNIA, COUNTY OF LOS ANGELES


THE PEOPLE,                                           )    No. BR 053647
                                                      )
          Plaintiff and Appellant,                    )    Downey Trial Court
                                                      )
                v.                                    )    No. 7DN07158
                                                      )
ELISEO BARAJAS,                                       )
                                                      )
          Defendant and Respondent.                   )    OPINION
                                                      )

        Appeal from an order of the Superior Court of Los Angeles County, Downey Trial
Court, Gregorio Roman, Judge. Reversed.
        Jackie Lacey, District Attorney of Los Angeles County, and John Harlan II and Matthew
Brown, Deputy District Attorneys, for Plaintiff and Appellant.
        Nicole Davis Tinkham, Interim Public Defender of Los Angeles County, Albert J.
Menaster, Head Deputy Public Defender, Aubrey Cunningham and Nick Stewart-Oaten,
Deputy Public Defenders, for Defendant and Respondent.
                                     *         *            *




                                               1
       Penal Code section 991 is the legislative safeguard that allows an in-custody
misdemeanant to require the arraigning magistrate to determine whether there is probable cause
to believe the defendant has committed a public offense. (Pen. Code, § 991, subd. (a).) If the
magistrate finds no such probable cause, the defendant is entitled to a dismissal of the charge.
(Pen. Code, § 991, subd. (d).)1
       We are presented with the following issue: Does section 991 vest the trial court with the
discretion to consider, as part of its determination of probable cause, whether the defendant’s
detention prior to arrest complied with the Fourth Amendment’s requirement that it be based on
reasonable suspicion? It is defendant’s position that, upon request by the defense, a section 991
motion has two phases. The first phase tasks the trial court with determining whether evidence
was seized in violation of the federal Constitution. In the second phase, the trial court is to
consider only the evidence that was constitutionally seized in assessing whether there is
probable cause to believe the accused committed a public offense.
       The trial court permitted defendant to litigate the Fourth Amendment issue at his
section 991 hearing. After reviewing documents submitted with the People’s opposition, it
found defendant was detained by a police officer and that his detention was not supported by
reasonable suspicion. Thereafter, upon defense motion, the trial court dismissed the complaint.
The People have appealed.
       As we will explain, litigation concerning the constitutionality of a defendant’s detention
is not supported by either the plain meaning of section 991 or its purpose. We are mindful that,
over 30 years ago, this appellate division resolved the issue differently in People v. Ward
(1986) 188 Cal.App.3d Supp. 11 (Ward). The time has come to overrule Ward because
section 991 was not properly interpreted therein.2 We reverse the trial court’s order dismissing


       1
           All further statutory references are to the Penal Code.
       2
         Neither party addresses the doctrine of stare decisis. Suffice it to say that, “[a]lthough the
doctrine does indeed serve important values, it nevertheless should not shield court-created error from
correction.” (Cianci v. Superior Court (1985) 40 Cal.3d 903, 924; see also Monell v. Dept. of Social
Services of the City of New York (1978) 436 U.S. 658, 695 [stare decisis not mechanically applied to
prohibit overruling prior decisions interpreting statutes].)

                                                       2
the complaint.
                                        BACKGROUND
       A misdemeanor complaint charged defendant and respondent Eliseo Barajas with
carrying a dirk or dagger (§ 21310). At his arraignment, defendant pled not guilty and made a
motion to dismiss the charge pursuant to section 991. In so doing, defendant argued he was
entitled to a dismissal of the complaint because he was illegally detained by the police. The
People took the position that a motion under section 991 does not consider whether there was
reasonable suspicion to detain a defendant, but rather is limited to “whether there is probable
cause to believe that a public offense has been committed and that the defendant is guilty
thereof.” The trial court disagreed with the People, but found good cause for a continuance to
allow the People to file a supplemental police report regarding the detention. The People then
filed an opposition to the section 991 motion. Attached to the opposition was a copy of the
police report, a supplemental report from the arresting officer (Downey Police Officer A.
Honrath), and a transcript of the officer’s encounter with defendant as recorded on a police
body camera.
       The material facts (to the extent they were developed in the trial court) are not in
dispute. They are lifted from Honrath’s supplemental police report as well as the transcript of
the conversation taken from his body camera. Honrath was on patrol around 2:25 a.m. on
September 20, 2017, when he saw defendant standing near a closed business. He stopped his
vehicle and shined his “white light” on defendant. Honrath illuminated defendant with the light
for reasons that relate to officer safety—Honrath was alone, and the darkness of early morning
prevented him from clearly seeing what defendant was doing. The police vehicle was
approximately 15 to 20 feet away and did not impede defendant’s “movements.” Honrath
exited his vehicle and, while standing next to it, asked defendant where he was “from.”
Defendant said he lived in Bell Gardens. In response to the officer’s inquiry about defendant’s
reason for being in Downey, defendant said his uncle lived in Downey. Defendant then began
to drink from a large soda. Honrath “slowly and casually” approached to within six to eight
feet of defendant. Defendant did not move or turn away. Rather, he was relaxed and


                                                 3
cooperative.
       Honrath asked defendant if he was on probation or parole. Defendant said he was on
probation and began to reach inside his sweatshirt pocket. The officer told defendant to keep
his hands out of the pocket. Defendant first said, “I just have my blade,” and then explained, “I
have my blade open.” Honrath replied, “Your blade?” Defendant responded, “Yes.” The
officer directed defendant to sit down, kick his legs out in front of him, cross his ankles, and
keep his hands where Honrath could see them. As the two continued to converse, defendant
disclosed that his knife was black and four inches long, and that he carried it for protection.
After an additional officer arrived, Honrath asked defendant to remove the knife from his
pocket and place it on a step several feet away. Defendant complied with the request. Honrath
retrieved the knife, arrested defendant for violating section 21310, and transported him to jail.
The knife was booked into evidence.
       The trial court ruled Honrath’s initial encounter with defendant was not consensual,3 and
that defendant was unconstitutionally detained prior to admitting he possessed a knife. The
trial court then granted the defense motion to dismiss, but did not provide any reason for doing
so. Presumably, the trial court concluded all evidence seized following the detention could not
be considered in determining whether there was probable cause to believe defendant committed
an offense.
                                          DISCUSSION
The Plain Meaning of Section 991
       On appeal, questions of law and statutory interpretation are reviewed de novo.
(People v. Kurtenbach (2012) 204 Cal.App.4th 1264, 1276.) “‘Under settled canons of
statutory construction, in construing a statute we ascertain the Legislature’s intent in order to
effectuate the law’s purpose. [Citation.] We must look to the statute’s words and give them
their usual and ordinary meaning. [Citation.] The statute’s plain meaning controls the court’s
interpretation unless its words are ambiguous.’ [Citation.]” (People v. Gonzalez (2008)

       3
        The trial court expressed considerable concern that Honrath’s body camera was apparently
activated late enough that, at a minimum, it excluded the officer’s first question to defendant.

                                                 4
43 Cal.4th 1118, 1125-1126.) “‘“If the words of the statute are clear, the court should not add
to or alter them to accomplish a purpose that does not appear on the face of the statute or from
its legislative history.” [Citations.]’ [Citation.] Put another way, the ascertainment of
legislative intent must ‘begin with the language of the statute itself. [Citation.] That is, we
look first to the words the Legislature used, giving them their usual and ordinary meaning.
[Citation.] “If there is no ambiguity in the language of the statute, ‘then the Legislature is
presumed to have meant what it said, and the plain meaning of the language governs.’”
[Citation.]’ [Citations.]” (People v. Herman (2002) 97 Cal.App.4th 1369, 1380-1381.) We
turn to the specifics of section 991.
       In pertinent part, section 991 provides: “(a) If the defendant is in custody at the time he
appears before the magistrate for arraignment and, if the public offense is a misdemeanor to
which the defendant has pleaded not guilty, the magistrate, on motion of counsel for the
defendant or the defendant, shall determine whether there is probable cause to believe that a
public offense has been committed and that the defendant is guilty thereof. [¶] . . . [¶] (c) In
determining the existence of probable cause, the magistrate shall consider any warrant of arrest
with supporting affidavits, and the sworn complaint together with any documents or reports
incorporated by reference thereto, which, if based on information and belief, state the basis for
such information, or any other documents of similar reliability. [¶] (d) If, after examining
these documents, the court determines that there exists probable cause to believe that the
defendant has committed the offense charged in the complaint, it shall set the matter for trial.
[¶] If the court determines that no such probable cause exists, it shall dismiss the complaint and
discharge the defendant.”
       Five years prior to the enactment of section 991, the foundation for such legislation was
laid by Gerstein v. Pugh (1975) 420 U.S. 103 (Gerstein). At the time Gerstein was decided,
Florida’s statutory scheme permitted a defendant charged by information to be detained
pending trial without a judicial determination of probable cause. (Id. at pp. 109-110, 116.)
Gerstein disapproved of such a procedure, holding the Fourth Amendment vests an in-custody




                                                 5
defendant with the right to have a prompt4 post-arrest determination of whether there was
probable cause to believe he or she committed a crime. (Id. at pp. 111-120.)
       The California Supreme Court ultimately applied the Gerstein rule to California
misdemeanants held in custody. (In re Walters (1975) 15 Cal.3d 738, 747 (Walters).) Because
section 991 did not exist at the time Walters was decided, “California procedures governing the
pretrial detention of those charged with misdemeanors . . . [did] not . . . comport with . . .
constitutional requirements . . . since the defendant [was] not afforded a post-arrest judicial
determination that probable cause exist[ed] for his continued detention.” (Ibid.) This led to
Walters’s holding that, “unless waived, a judicial determination of probable cause is required in
every case where a defendant charged with a misdemeanor is detained awaiting trial.” (Ibid.)
In response, the Legislature enacted section 991 in order “(1) to eliminate groundless
complaints and (2) to codify Walters.” (People v. McGowan (2015) 242 Cal.App.4th 377,
383-384.)
       Section 991 expressly defines the determination to be made by the court—i.e., “whether
there is probable cause to believe that a public offense has been committed and that the
defendant is guilty thereof.” (§ 991, subd. (a).) The statute makes no reference to any other
issue to be resolved at such a hearing. Nor is there any suggestion the court, in its discretion, is
permitted to expand the scope of a section 991 hearing to consider other issues as part of its
probable cause determination. “The purpose of . . . section 991 is to only ‘determine whether
there is probable cause to believe that a public offense has been committed’ by the defendant.
[Citations.]” (People v. Scott (1993) 20 Cal.App.4th Supp. 5, 9, italics omitted.) The plain
language of section 991 limits the consideration to be made by the trial court; it does not
provide a mechanism for the defense to challenge the constitutionality of defendant’s detention.
Relationship of Section 991 to the Preliminary Hearing
       When giving meaning to a statute, courts “‘consider the language of the entire scheme
and related statutes . . . .’ [Citations.]” (People v. Gonzalez (2017) 2 Cal.5th 1138, 1141.)

       4
        Generally speaking, a determination within 48 hours of arrest satisfies the promptness
requirement. (County of Riverside v. McLaughlin (1991) 500 U.S. 44, 56-57.)

                                                   6
“‘[S]tatutory sections relating to the same subject must, to the extent possible, be harmonized.’
[Citation.]” (926 North Ardmore Ave., LLC v. County of Los Angeles (2017) 3 Cal.5th 319,
328.) As we will explain, the parameters we define for a section 991 motion harmonize the
statute with rules governing preliminary hearings and the plain language of section 1538.5,
subdivision (m).
       A defendant charged by complaint with a felony offense is entitled to a preliminary
hearing to determine whether there is sufficient evidence to hold him or her to answer the
charges. (§§ 871, 872.) “The issues before a magistrate on preliminary hearing are whether a
public offense has been committed and whether there is probable cause to believe the defendant
is guilty thereof. [Citations.]” (People v. Williams (1989) 213 Cal.App.3d 1186, 1197
(Williams).) We stated above the legislatively defined question presented at a section 991
hearing—“whether there is probable cause to believe that a public offense has been committed
and that the defendant is guilty thereof” (§ 991, subd. (a)). The subjects of the two proceedings
are virtually identical.
       “[T]hroughout the legislative history, the probable cause hearing under section 991 has
been referred to as [the] ‘preliminary hearing[] for misdemeanors.’ [Citation.]” (People v.
McGowan, supra, 242 Cal.App.4th at p. 385.) “[T]he Legislature contemplated that
section 991 probable cause hearings would serve a purpose similar to that of preliminary
hearings in felony cases . . . .” (Id. at pp. 385-386.) Given the functional parity between
preliminary hearings and section 991 determinations, we consider whether a defendant may
litigate the constitutionality of his or her detention in the course of the preliminary hearing
(without filing a section 1538.5 motion to suppress).
       It has squarely been held that “the only way in which a defendant can litigate the
unreasonableness of a search and seizure at the preliminary hearing is to move to suppress
under section 1538.5.” (Williams, supra, 213 Cal.App.3d at p. 1195.) In reaching this
conclusion, Williams relied on the plain language of section 1538.5, subdivision (m), which
reads in pertinent part: “The proceedings provided for in this section, and [s]ections 871.5
[prosecutor’s motion to reinstate previously dismissed complaint], 995 [motion to set aside


                                                 7
indictment or information], 1238 [appeals in felony cases], and 1466 [appeals in misdemeanor
and infraction cases] shall constitute the sole and exclusive remedies prior to conviction to test
the unreasonableness of a search or seizure where the person making the motion for the return
of property or the suppression of evidence is a defendant in a criminal case and the property or
thing has been offered or will be offered as evidence against him or her.” (See also Williams,
supra, 213 Cal.App.3d at pp. 1195-1196.) “Of the sections mentioned in subdivision (m), only
section 1538.5 is available at the preliminary hearing.” (Id. at p. 1196.)5 Thus, the scope of a
preliminary hearing is limited to “any evidence which . . . [has] a ‘tendency in reason to prove
or disprove’ facts showing that an offense has been committed or facts showing defendant is
guilty thereof . . . . [Citations.]” (Id. at p. 1197.)
       In this context, the analogy between the preliminary hearing and a section 991 hearing is
strong. Section 991 is not included as one of the few statutes (distinct from section 1538.5)
under which a suppression of evidence issue could be litigated. There is no constitutional or
statutory basis for a trial court, tasked with resolving the same issue (and using the same
standard) at a section 991 hearing, to consider evidence that is beyond the restrictions explained
in Williams. Whether the proceeding is a preliminary hearing or a section 991 motion,
section 1538.5 is the exclusive pretrial vehicle to test the unreasonableness of a search or




       5
          When section 1538.5 was originally enacted in 1967, subdivision (m) read: “‘The proceedings
provided for in this section, Section 995, Section 1238, and Section 1466 shall constitute the sole and
exclusive remedies prior to conviction to test the unreasonableness of a search or seizure where the
person making the motion for the return of the property or the suppression of evidence is a defendant in
a criminal case and the property or thing has been offered or will be offered against him.’” (Thompson
v. Superior Court of Los Angeles County (1968) 262 Cal.App.2d 98, 102, quoting § 1538.5, subd. (m),
fn. omitted.) Section 991 was not enacted until 1980. But, in 1982, subdivision (m) was amended to
add section 871.5 to the list of exceptions to the general rule that section 1538.5 is the means by which
to litigate suppression issues. (Stats. 1982, ch. 625, § 1, eff. August 27, 1982, ch. 1505, § 6.) The
Legislature’s decision to amend the exceptions to include a statute other than section 991 suggests
section 991 is not a vehicle for litigating search and seizure issues. (See People v. McClanahan (1992)
3 Cal.4th 860, 865 [if the Legislature is given an opportunity to amend a statute to include exceptions to
its purview, and includes only certain exceptions, it is indicative of a legislative intent to limit the
exceptions to those specified].)



                                                    8
seizure.6
The Ward Decision
       After acknowledging Walters implemented the probable cause determination required by
Gerstein, and that section 991 in turn executed the requirements of Walters (Ward, supra,
188 Cal.App.3d at p. Supp. 15), Ward concluded it was “clear that the lawfulness of an arrest is
to be considered at such a . . . hearing [citation]” (ibid.) and that, “following the specifications
of Walters, . . . [the] magistrate [is allowed] to determine the lawfulness of the custodial
detention of a misdemeanant based upon the reading and consideration of an arrest report
attached to the complaint, under the circumstances at bench” (id. at p. Supp. 16, fn. omitted).
In fact, however, just as nothing in the plain language of section 991 allows for litigating the
constitutionality of the defendant’s detention, nothing in either Gerstein or Walters suggests the
determination of probable cause incorporates the consideration of such an issue.
       Gerstein explained the full panoply of adversary safeguards, including counsel,
confrontation, cross-examination, and compulsory process for witnesses, “[was] not essential
for the probable cause determination required by the Fourth Amendment. The sole issue is
whether there is probable cause for detaining the arrested person pending further proceedings.
This issue can be determined reliably without an adversary hearing. The standard is the same

       6
          The reasoning of Williams applies even more forcefully to the issue with which we are
presented.
         Sections 995 and 991 serve “analogous purposes (to weed out unsupported charges prior to
trial).” (McGowan, supra, 242 Cal.App.4th at p. 382.) A section 995 motion provides an avenue for a
defendant charged with a felony to set aside an indictment or information if the defendant “has been
committed without reasonable or probable cause.” (§ 995, subd. (a)(1)(B) & (2)(B).)
         By referencing section 995 as a proceeding in which a suppression issue may be litigated, the
Legislature authorized a defendant who unsuccessfully moves to suppress at a preliminary hearing to
“raise the matter in superior court under the standards governing a section 995 motion. (§ 1538.5,
subd. (m).)” (People v. Superior Court (Cooper) (2003) 114 Cal.App.4th 713, 717.)
         The Legislature’s decision to identify section 995 (but not section 991) as a statute under which
the constitutionality of a search or seizure may be litigated is a strong indicator that such a
determination is beyond the scope of a section 991 hearing. (Gikas v. Zolin (1993) 6 Cal.4th 841, 852
[“The expression of some things in a statute necessarily means the exclusion of other things not
expressed”]; Julian v. Mission Community Hospital (2017) 11 Cal.App.5th 360, 381 [the fact that the
Legislature provided for a private right of action to remedy certain Welfare and Institutions Code
violations, but not for the one asserted by plaintiff, is a “strong indication” plaintiff does not have a
private right of action under the asserted statute].)

                                                    9
as that for arrest. That standard—probable cause to believe the suspect has committed a
crime—traditionally has been decided by a magistrate in a nonadversary proceeding on hearsay
and written testimony, and the Court has approved these informal modes of proof.” (Gerstein,
supra, 420 U.S. at p. 120, fn. omitted.) Litigation concerning the reasonableness of a search or
seizure would move the probable cause determination hearing outside the boundaries Gerstein
sets for a prompt and informal hearing.
       Similarly, Walters described the probable cause determination for misdemeanants in the
following way. “When a defendant is arrested without a warrant . . . , the judge may make his
determination upon a sworn complaint which incorporates by reference other factual materials
which, together with the complaint, establish probable cause for detention. Such other
materials may include a copy of a police or other report which forms the basis for the complaint
and arrest. We recognize that the information in such a report is hearsay, but hearsay evidence
has traditionally been deemed to establish probable cause without infringing Fourth
Amendment prohibitions. [Citations.] To assure that the reports bear the indicia of reliability
necessary to justify the magistrate’s reliance upon them, the materials submitted must be stated
upon the personal knowledge of the party who makes the report or upon the information and
belief of such person who further states the basis for his information and belief and other facts
which demonstrate the trustworthiness of such information. [Citations.]” (Id. at p. 751, italics
omitted.) Walters is in lockstep with Gerstein.
       Both Gerstein and Walters contemplate a procedure largely based on documentary
evidence and not conducive to a determination of whether evidence was constitutionally
obtained. “The use of an informal procedure is justified not only by the lesser consequences of
a probable cause determination but also by the nature of the determination itself. It does not
require the fine resolution of conflicting evidence that a reasonable-doubt or even a
preponderance standard demands, and credibility determinations are seldom crucial in deciding
whether the evidence supports a reasonable belief in guilt. [Citation.]” (Gerstein, supra,
420 U.S. at p. 121, fn. omitted.)
       The same cannot be said for an assessment of whether evidence was obtained in


                                                  10
violation of the Fourth Amendment. A motion challenging the constitutionality of a search or
seizure often turns on the credibility of witnesses or the trial court’s factual findings. It is
litigated at a formal hearing with witness testimony and cross-examination. The suppression
hearing is subject to discretionary discovery orders and provides rights that are nonexistent at
probable cause determinations. (Magallan v. Superior Court (2011) 192 Cal.App.4th 1444,
1464 [defendant has a “well-established right to due process” at a suppression hearing and, for
that reason, the trial court has the power to grant a defendant’s discovery request tailored to the
Fourth Amendment issues to be litigated at the hearing].) Limitations applicable to probable
cause hearings have no place in the litigation of search and seizure issues.7
Section 991.5
       Defendant argues the Legislature silently approved of Ward’s holding because it did not
amend section 991 after Ward was decided. (See, e.g., People v. Salas (2006) 37 Cal.4th 967,
979 [inferring “legislative acquiescence” in a prior decision interpreting a provision of the
Corporations Code because the Legislature had frequently amended the corporate securities
laws over a period of 10 years following the prior decision].) He relies heavily on the fact that,
in 2016, the Legislature enacted section 991.5 and in so doing cited Ward as support for the
new legislation.
       Section 991.5 institutes a program wherein three counties “participate in a three-year
pilot project that would require a court, upon request by the defendant in the case of a defendant
charged with a misdemeanor who is not in custody, to make a finding at the arraignment as to


       7
         It is often impractical to litigate the constitutionality of a detention in the course of reviewing
police reports and other documentary evidence at an informal hearing to determine whether there is
probable cause to detain the arrested person. The case before us presents a good illustration of that
point. The trial court explained what tipped the scales in favor of suppression in the following way.
“[W]hat really sways the court is the lack of the first few seconds as to the questions asked of the
defendant when the recorder was not -- for some reason, he didn’t say that it was not working, he just
said that it started. Obviously the recorder starts when the officer either pushes or starts the recording.
He doesn’t indicate that when he started or when he pushed on it, it only provides the questions already
after some contact has happened.” A formal suppression hearing includes testimony from officers
relevant to the constitutional issue and, in this case, would have undoubtedly produced evidence
explaining (a) why the recorder was not initiated prior to the first question, and (b) content and context
of any unrecorded conversation.

                                                     11
whether probable cause exists to believe that a public offense has been committed and that the
defendant is guilty thereof.” (§ 991.5, subd. (a).) It is true, as defendant points out, that
citation to Ward appears in the Senate Rules Committee’s Third Reading (SRC3) and in the
Senate Committee on Appropriations (SCA) summary of the bill. However, defendant takes
the citations out of context.
       In the section of the SRC3 devoted to arguments in opposition of the bill, a portion of a
statement issued by the California District Attorneys Association is quoted as follows.
“Following Gerstein, Penal Code section 991 was enacted ‘to be a safeguard against the
hardship suffered by a misdemeanant who is detained in custody, by providing that a probable
cause hearing will be held immediately, at the time of arraignment . . .’ (People v. Ward (1986)
188 Cal.App.Supp. 11, 15, 17.) . . . For an out-of-custody defendant, there is no such hardship.
[¶] To expand [section] 991 to apply to out-of-custody defendants is to misunderstand the entire
purpose of [section] 991, and would result in additional trial court resources being spent to
remedy a hardship that arguably does not exist.” (Sen. Rules Com., Off. of Sen. Floor
Analyses, 3d reading analysis of Assem. Bill No. 2013 (2015-2016 Reg. Sess.) as amended
Aug. 15, 2016, pp. 6-7.) The SCA quotes a nearly identical passage from People v. McGowan
(2015) 235 Cal.App.4th Supp. 1, 6:8 “In response to the requirements of Walters, section 991
was enacted ‘to be a safeguard against the hardship suffered by a misdemeanant who is
detained in custody, by providing that a probable cause hearing will be held immediately, at the
time of arraignment . . . .’ (People v. Ward (1986) 188 Cal.App.3d Supp. 11, 15, 17.)” (Sen.
Com. on Appropriations, Fiscal Summary of Assem. Bill No. 2013 (2015-2016 Reg. Sess.)
Aug. 1, 2016 hearing, p. 2.)
       We do not put significant weight on these two citations. There is no mention of Ward’s
holding in the legislative history of section 991.5. The reference to Ward in the SRC3 was
made by an outside agency opposing the bill; it was not in any way an acknowledgment by the
Legislature that Ward was properly decided. Most importantly, the two citations to Ward

       8
        The opinion of the appellate division in McGowan was superseded by People v. McGowan
(2015) 242 Cal.App.4th 377.

                                                 12
merely explain the historical context of section 991; they are far from a legislative endorsement
of its holding. We are not inclined to conclude that when the Legislature enacted a temporary
pilot program to allow section 991 motions for out-of-custody misdemeanants in three counties
of California, its two references to Ward for historical perspective were a tacit approval of
Ward’s ultimate holding that Fourth Amendment issues were suitable for section 991 hearings.
       “The Legislature’s failure to act may indicate many things other than approval of a
judicial construction of a statute: the ‘sheer pressure of other and more important business,’
‘political considerations,’ or a ‘tendency to trust to the courts to correct their own errors . . . .’”
(County of Los Angeles v. Workers’ Comp. Appeals Bd. (1981) 30 Cal.3d 391, 404, internal
quotation marks omitted.) The Legislature’s inaction does not trump the plain meaning of
section 991 or its strict constitutional purpose as defined by Walters.
Admissibility of Evidence
       Defendant claims he has a constitutional right to object to the use of illegally obtained
evidence at a misdemeanor probable cause hearing, citing in support Mapp v. Ohio (1961)
367 U.S. 643, 655 [“We hold that all evidence obtained by searches and seizures in violation of
the Constitution is, by that same authority, inadmissible in a state court”] and U.S. v. Calandra
(1974) 414 U.S. 338, 347 [under the exclusionary rule, “evidence obtained in violation of the
Fourth Amendment cannot be used in a criminal proceeding against the victim of the illegal
search and seizure”].)
       What defendant misses is that the referenced holdings were in the context of using
illegally obtained evidence “to convict [a defendant] of crime or to forfeit his goods” (Mapp v.
Ohio, supra, 367 U.S. at p. 647) and “where the Government’s unlawful conduct would result
in imposition of a criminal sanction on the victim of the search” (U.S. v. Calandra, supra,
414 U.S. at p. 348). The constitutional ban to using improperly seized evidence applies to
proceedings in which a defendant could be convicted of a crime or subjected to the imposition
of a criminal sanction, not to determinations of probable cause to hold a defendant in custody




                                                   13
pending trial.9 As Gerstein emphasized, the informal probable cause hearing is justified, in
part, by the less severe consequences of the magistrate’s ruling. (Gerstein, supra, 420 U.S. at
p. 121.) Defendant’s argument cannot be reconciled with Gerstein.
                                           DISPOSITION
       The order dismissing the complaint is reversed. People v. Ward (1986) 188 Cal.App.3d
Supp. 11 is overruled.


                                                            _________________________
                                                            Kumar, J.
       We concur:



       _________________________                            _________________________
       P. McKay, P. J.                                      Richardson, J.




       9
         Defendant’s string citation to authorities for the proposition that “competent” evidence is
required to support probable cause determinations is of little assistance. To condition the consideration
of evidence on its “competence” or admissibility is inconsistent with the approach sanctioned by
Gerstein and Walters, i.e., an informal proceeding that permits consideration of police reports, sworn
complaints, and hearsay. “Of course an objection to evidence may be made, but [this does not mean] a
mere objection to the People’s offer of evidence can be used in the place of a suppression motion under
section 1538.5, to litigate a search and seizure issue.” (People v. Williams, supra, 213 Cal.App.3d at
p. 1196.)

                                                   14
