People v. Superior Court (Persons)

Opinion

CHRISTIAN, J.

Petitioners, the People of the State of California, seek a writ of prohibition restraining respondent superior court from enforcing an order in the case of People v. Freddie L. Persons and Charles A.

[193]

Scott (No. 91484) which granted a motion by Persons and Scott for a post-indictment preliminary hearing.

Persons and Scott were jointly charged with murder (Pen. Code, § 187) by indictment filed on December 10, 1975. Additional counts of the indictment charged Persons with assault with a deadly weapon (Pen. Code, § 245, subd. (a)) and possession of a concealable firearm (Pen. Code, § 12021); Scott was charged with assault with a deadly weapon and possession of a loaded firearm (Pen. Code, § 12031). A motion by Persons and Scott to dismiss the indictment under Penal Code section 995 was denied. Thereafter, they moved the court for an order setting a post-indictment preliminary hearing. Respondent court issued the following order:

“The proceedings in the superior court are hereby stayed.

“The matter is referred to the Municipal Court for the purposes of holding a post-indictment preliminary hearing to determine whether there is reasonable and probable cause to hold the defendants (or either of them) to answer before the superior court for the offenses charged in the criminal complaint before that court.

“If the district attorney does not comply with this order, the stay of proceedings before this court shall become permanent.”

The People correctly maintain that there is no constitutional, statutory, or case authority which permits a superior court to order a post-indictment preliminary hearing.

The California Constitution, article I, section 14, states: “Felonies shall be prosecuted as provided by law, either by indictment or, after examination and commitment by a magistrate, by information.” It has long been established in this state that a preliminary hearing is not required where the defendant has been indicted. (Greenberg v.

Superior Court