Bates v. Superior Court

GRIFFIN, J.

Petitioner, Donald A. Bates, filed this petition (after denial of motion made under Pen. Code, § 995) to test the question of the sufficiency of the evidence taken at the preliminary hearing and to determine whether the information was found without reasonable or probable cause.

Petitioner, the alleged passive agent, and one Andrew M. Herman, the alleged active agent, were jointly charged with the crime of sex perversion under section 288a of the Penal Code. They were duly arraigned and their preliminary hearing was set for September 19, 1951. Both defendants were present at that time and were represented by separate counsel. It appears from the petition that counsfel for petitioner, prior to the preliminary hearing, was assured by the deputy district attorney that if petitioner would offer himself as a witness against his codefendant he would move to dismiss the corn-

[657]

plaint. Under these circumstances the police officers were sworn and examined at the hearing and testified generally as to the acts they saw, which testimony did indicate reasonable grounds for holding both defendants to the superior court. Counsel for petitioner waived any cross-examination of the witnesses. Thereupon, the People called petitioner “under sec. 1099 of the Penal Code.” Some discussion followed. Counsel for the codefendant remarked: “This section 1099 seems to contemplate some action on the part of the court. The district attorney probably wants to make an application that the court has to rule upon.” The deputy district attorney then said: “If the court please, the people will ask that the complaint be dismissed against the defendant” (Bates) “so that he may be a witness for the People.” The court responded: “Under 1099 the application is granted.” Thereafter, the court remarked: “The court is a little surprised that the District Attorney feels that it is necessary to take this action, these steps at this time, in view of the record, but I am going to grant the application.” The petitioner Bates then said: “Just what does that mean?” And his counsel replied: “The motion was to dismiss as against Donald Bates in order that he may become a witness and the court granted that motion.” “The Court: Yes, with the observation of the court that I am somewhat surprised that the District Attorney feels it is necessary to make such application at this time in view of the record. . . .You may proceed.”