By Marshall Hammons
A defendant faced a preliminary hearing for three criminal charges, but the prosecutor was not able to bring forward enough evidence to show the defendant committed the crimes alleged. However, the prosecution will get another chance due to a rule that allows for two dismissals of a case.
The evidence at the hearing consisted of two witnesses. The first witness was the complaining witness, a victim of a vehicle break-in. The witness confirmed the vehicle at issue was his and that he had come back to his car in the early evening only to find his rear passenger window was smashed. As a Bay Area resident for over thirteen years, the complaining witness did not even call the police when he found his car window broken and indicated it was not a big deal for him. The complaining witness said he was never contacted by the police and the only reason he knew about this case was when he was subpoenaed to testify.
Next, the prosecutor called Officer James Johnson. Officer Johnson was on patrol with his partner in plainclothes and in an unmarked police car. Officer Johnson stated he saw someone that he 
recognized to be the defendant from prior incidents, and set up surveillance.
The two officers recorded that person breaking into the vehicle window, only to leave shortly afterward when another person began walking toward the vehicle. Officer Johnson then went to take pictures of the incident for his report.
Other officers arrested the defendant on a MUNI bus and brought him to the station. The officers then searched the defendant’s bag, and found several items they believed to be illegal. It was these allegedly illegal items that made up some of the charges.
Officer Johnson then went to talk with the owner of the vehicle. Officer Johnson went to the registered owner’s house and talked with someone. It did not occur to Officer Johnson until he was in court that the person he talked to at the house was not actually the complaining witness. Officer Johnson said the two looked strikingly similar.
The deputy public defender argued that the prosecutor had not provided enough evidence to keep the defendant in custody. The defense attorney explained that the parts of the crimes charged simply were not given any support by any evidence heard by the judge. Namely, the arresting officer should have been brought in to testify that the arrest itself was valid, and to testify regarding the items found in the backpack.
In an unusual turn of events, the prosecutor interrupted the defense attorney’s argument to agree to dismiss the charges. The prosecution stated they would re-arrest the defendant in order to bring the correct witnesses into court at another hearing in the future. The judge agreed to the dismissal, and the defendant remains in custody.
Since the defendant had his case dismissed and will likely be re-arrested, the prosecutor has more time to get his evidence together for his second preliminary hearing. Justice was delayed for this defendant because the prosecutor did not adequately prepare his witness list. It seems that instead of the defendant getting relief for the prosecutor messing up the preliminary hearing, it’s the prosecutor who is getting relief.
