Anderson v. Superior Court

[864]

MOSK, J.

In this proceeding for a writ of prohibition we adjudicate, for the first time in this state, the question whether the People may pursue an appeal from an order dismissing an accusatory pleading under section 995 of the Penal Code and, while that appeal is pending, file a new pleading charging the same offense and proceed to trial on the second pleading. For reasons stated hereinafter, we conclude that although the People may simultaneously file an appeal from the dimissal of the first pleading and seek a new accusation, they should be required to elect between these two courses of action either when the second accusation has survived a motion under section 995 or at the time of arraignment for plea, whichever first occurs.

Petitioner was indicted by a grand jury for the murder of two police officers. On May 9, 1966, his motion under section 995 of the Penal Code was granted by the superior court for the reason that he had been indicted without reasonable and probable cause in that “the record is devoid of identification of the defendant now in custody.” The court ordered (as allowed by Pen. Code, §§ 997, 998) that a preliminary examination be held before a magistrate and that if the petitioner be committed or held to answer, an information against him be filed by the district attorney. A notice of appeal from the order setting aside the indictment was filed by the People on the same day, and that appeal is now pending in the Court of Appeal.

On May 26, subsequent to the filing of the notice of appeal, a preliminary hearing was held at which eyewitnesses identified petitioner. He was held to answer, and an information was filed charging him with the murder of the two officers. Petitioner pleaded not guilty, and the matter was set for trial. During the

voir dire

examination of jurors, however, the trial court requested counsel to submit authorities on the question of its jurisdiction to proceed. Thereafter, the court suggested a continuance until the jurisdictional issue could be determined. The present proceeding in prohibition was then instituted, and the trial has been postponed pending its determination.

Petitioner contends he should not be compelled to defend an appeal and simultaneously prepare for trial on the basis of the second accusation. He maintains that the People are not prejudiced if they are required to elect between the alternatives of appealing from the dismissal of the indictment un^er section 995 or filing a new information or indictment. The