Guerin v. Superior Court

California Court of Appeal Jan 23, 1969 No. Civ. No. 34132Published

Before: Kaus

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Holding. Penal Code section 999a provides the exclusive procedure for challenging a trial court's denial of a motion to set aside an information for lack of reasonable or probable cause, and petitions filed after the 15-day statutory limit must be denied.

Issues

Whether the 15-day time limitation in Penal Code section 999a for filing a petition for a writ of prohibition is mandatory and exclusive.
Whether a defendant may challenge a commitment for lack of reasonable or probable cause after the expiration of the statutory period.

Disposition. denied

Quotations verified verbatim against the opinion

“We think in section 999a the Legislature has provided the sole procedure by which an erroneous denial of a motion to set aside an information for lack of reasonable or probable cause can be attacked before trial.”

“We reach our conclusion that section 999a, including the time limitation therein, is an exclusive remedy in this situation”

269 Cal.App.2d 80 (1969) JOSEPH HENRY GUERIN, Petitioner,

THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; THE PEOPLE, Real Party in Interest.

Civ. No. 34132. California Court of Appeals. Second Dist., Div. Five.

Jan. 23, 1969. John Guerin, in pro. per., for Petitioner.

No appearance for Respondent.

Evelle J. Younger, District Attorney, for Real Party in Interest. [81]

KAUS, P. J.

Petitioner is about to be tried on charges of kidnapping and robbery. (Pen. Code, 209, 211.) The date set for trial is February 3, 1969. His motion to have the information set aside under the provisions of section 995 of the Penal Code was denied on December 13, 1968. On January 13, 1969, he filed a "Petition For Writ of Prohibition or Other Appropriate Writ" with this court. The petition is accompanied by a declaration of his attorney which adequately explains why the 15-day limitation for the filing of the petition in this court, contained in section 999a of the Penal Code, could not be observed. [fn. 1] He prays for relief from the default. If we had power to do so, we would excuse the delay.

The petition filed in this court seeks to prohibit the trial not only because the defendant was allegedly committed without reasonable or probable cause, but also because he was not "legally committed" by the magistrate. [fn. 2]

With respect to the ground of an alleged illegal commitment, petitioner is not bound by the time provisions of section 999a. (McGonagill v. Superior Court, 214 Cal.App.2d 192, 194-195 [29 Cal.Rptr. 485].) We have examined the transcript of the preliminary hearing and find that petitioner was not denied any substantial right in connection with that hearing. (Jennings v. Superior Court, 66 Cal.2d 867, 874 [59 Cal.Rptr. 440, 428 P.2d 304].) As far as the ground of illegal commitment is concerned, the petition is denied on the merits.

[1] Turning to the claim that petitioner was committed without reasonable or probable cause, the question is whether the statutory scheme permits us to turn to the merits. If it does permit us to consider the merits, we could do so either by granting the application to be relieved from default, or by treating the petition as one for habeas corpus. (In re Cregler, 56 Cal.2d 308, 309 [14 Cal.Rptr. 289, 363 P.2d 305].)

Guerin v. Superior Court

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KAUS, P. J.

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