Vargas

Introduction

Johnnye Ray Vargas was charged with murdering Amanda White (Pen. Code, § 187). During his preliminary examination, defense counsel sought to call the defendant as a witness. Counsel explained that the defendant was reluctant to testify. The judge attempted to take a waiver of the defendant’s Fifth Amendment privilege not to testify against himself. Because the defendant was equivocal in his waiver of rights, the magistrate refused to allow the defendant to testify during the preliminary hearing.

The defendant brought a Penal Code section 995 motion challenging the legality of his commitment. The defendant argued that he had been denied the right to present an affirmative defense during the preliminary hearing. The superior court agreed and granted the section 995 motion. The state appeals the superior court’s order.

Facts

On November 11, 1982, Gabrielle White watched her older sister Amanda leave the family home at about 12 midnight with the defendant. The next morning police officers found Amanda dead on school grounds just down the street from the White home.

Officer Trogdon, of the Modesto Police Department, saw the defendant walking through a parking…