Special Directive 20-08 requires Los Angeles deputy district attorneys to orally amend the charging document “at the first court hearing” to dismiss or withdraw any enhancement allegation, including prior convictions.
The deputy is required to make this request before or even at the preliminary hearing. There may be real consequences for failing to do this, including having the defense lawyer report you to you supervisor.
The problem is that this order is illegal. The authority of a magistrate, including but not limited to the magistrate of the preliminary hearing court, is derived from the Penal Code and the power and duties of the functionary are solely those given by statute. (People v. Municipal Court (White) (1979) 88 Cal.App.3d 206, 213.)
In People v. Municipal Court (White), the Court found that the preliminary hearing it not a trial and a magistrate presiding at the hearing does not sit as a judge of a court and exercises none of the powers of a judge in a court proceeding. (Id.)
In fact, once a felony complaint has been filed, a magistrate’s options are limited to
- conducting the preliminary examination,
- holding the defendant to answer for trial,
- discharging the defendant if there is insufficient evidence and
- certifying the defendant to superior court if defendant pleads guilty.
(Id.) The Penal Code does not empower a magistrate to strike a prior conviction. (Id.)