Birt v. Superior Court

Opinion

JANES, J.

Petitioner seeks a writ of prohibition after respondent superior court denied her motion to set aside an information charging her with burglary (Pen. Code, § 459).

Here, as in the trial court, petitioner contends that she was committed by the magistrate without reasonable or probable cause (Pen. Code, § § 995, 999a). The transcript of the preliminary examination shows that her contention is meritorious.

At about 9:30 p.m. on April 2, 1973, when Mr. Rodney McNutt arrived home in Stockton, he noticed that all the lights were on in his house, and that a Ryder rental van was parked beside it on the grass. Entering the house through a rear door, Mr. McNutt discovered that some of its contents were missing and some had been moved to the kitchen doorway.

Mr. McNutt heard the side doors of the van slam shut. He went outside, opened the driver’s door, and looked for keys in the ignition. Finding no keys, he turned and started toward a neighbor’s house to have the police notified. However, upon hearing the driver’s door close behind him, Mr. McNutt went back to the van and opened the door again. This time he

[937]

saw two adult males in the back of the vehicle. The' two men, whom Mr. McNutt could not identify, threw some of his stolen effects out at him and escaped through the side doors of the van on foot.

Later that night, when a sheriff’s deputy examined the abandoned vehicle at the McNutt home, the officer removed a cigarette lighter from the passenger side of the front seat. One of petitioner’s fingerprints was on the lighter. Other fingerprints—unidentified at the preliminary examination— were found inside the van on two cigarette packages, the rear-view mirror, and a drinking glass.

In reviewing the evidence which was before the committing magistrate, we of course exercise only limited powers.

(People

v.

Hall

(1971) 3 Cal.3d 992, 996 [92 Cal.Rptr. 304, 479 P.2d 664].) We nevertheless find it appalling that petitioner is being prosecuted on so scanty a record.