Herrera

At a preliminary hearing, a magistrate found probable cause to hold Rogelio Manon Herrera to answer for conspiracy to manufacture methamphetamine and other crimes. Herrera successfully moved to dismiss the conspiracy count under Penal Code section 995 on the basis there was no evidence of conspiracy other than his own extrajudicial statements. The People appeal the order granting the motion to dismiss, arguing primarily that the corpus delicti rule does not apply to preliminary hearings. Herrera asserts this appeal is moot because he pleaded guilty to two necessarily included offenses, and may not be tried on the conspiracy charge even if we were to agree with the People’s argument.

The appeal is not moot. Herrera pleaded guilty to charges that are not necessarily included offenses of conspiracy under the so-called elements test, and the accusatory pleading test is not applicable for double jeopardy purposes, or for deciding whether multiple convictions of charged offenses is proper. On the merits, however, the corpus delicti rule continues to apply to preliminary hearings. Applying the corpus delicti rule to the preliminary hearing testimony, we agree with the trial…