McCauley v. Superior Court

[563]

GRIFFIN, P. J.

The petitioner recites that he was charged with violation of Penal Code, sections 286 and 288a, on December 2, 1960

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that he was arraigned and a preliminary hearing was scheduled for December 9, 1960; that on that date petitioner, through his appointed counsel, filed with Fred H. Jacobs, Justice of the Upland Judicial District, County of San Bernardino, a written document of disqualification

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under Code of Civil Procedure, section 170.6. Notwithstanding the filing of this document, and over objections, the justice proceeded to hear the preliminary examination of petitioner and stated that the document was not sufficient to deprive him of jurisdiction. After taking evidence which admittedly substantiated the charges, petitioner was held to answer to the superior court. Thereafter, an information was accordingly filed on December 22, 1960. Defendant’s counsel moved for a dismissal of the information under Penal Code, section 995, and the respondent court denied the motion, indicating that the declaration of prejudice was not sufficient because it did not indicate the

place of execution

as required by Code of Civil Procedure, section 2015.5. The original document was not before the trial court at the time of the hearing but a résumé of its contents was related.

In this proceeding to review that ruling, it is claimed by petitioner that on December 1 and December 2, 1960, and thereafter, he was in the city jail at Upland and then returned to the county jail in San Bernardino, and on December 9 he was taken to the city jail in Upland and remained there until after his preliminary examination, and that the district at

[564]

torney was fully aware of this fact. There is no denial of these allegations in respondent’s answer and return to this writ.