Stevenson v. Superior Court

Opinion

CHRISTIAN, J.

John Dewitt Stevenson seeks a writ (Pen. Code, § 999a) to restrain respondent superior court from taking any further action in a felony case pending against him other than to dismiss the information. We issue the writ because there was no competent evidence at the preliminary hearing supporting the order of the magistrate holding petitioner for trial.

On April 13, 1978, a complaint was filed in the municipal court charging petitioner with assault with intent to murder (Pen. Code, § 217) and assault with a deadly weapon (Pen. Code, § 245). Both counts arose out of an alleged attack on one Ernesto Munoz Salinas on April 11, 1978.

On April 14, 1978, petitioner was arraigned, but no plea was taken; on motion of his counsel pursuant to Penal Code section 4011.6, a psychiatric report was ordered and the case was continued to April 18, 1978, for arraignment. On that date he pleaded not guilty.

On May 2, 1978, a preliminary hearing was held and petitioner was held to answer on both counts.

An information was filed in superior court, but criminal proceedings were suspended (Pen. Code, § 1368

1

) and the court undertook to

[928]

determine whether petitioner was competent to stand trial. Petitioner was found to be incompetent and committed to Atascadero State Hospital. On November 1, 1978, petitioner was returned to superior court as competent and remanded to municipal court for a new preliminary hearing.

At the second preliminary hearing, held on November 16, 1978, the People called two witnesses, who testified that the victim, Ernesto Salinas, could not be found. The magistrate then received over objection the testimony of Salinas at the first preliminary hearing (see Evid. Code, § 1290

2

).

At the conclusion of the reading of the former testimony, the magistrate held petitioner to answer; the magistrate also referred petitioner to the superior court under Penal Code section 1368.