Barber v. Superior Court

Opinion

PUGLIA, P. J.

An information filed in respondent superior court charges that “On or about October 21, 1990” petitioners violated “Penal Code Section 278.5(b).”

1

Petitioners (defendants) seek a writ of prohibition restraining further prosecution (Pen. Code, § 999a) after the superior court denied their motion to dismiss on the ground that the preliminary hearing evidence does not support the charge. (Pen. Code, § 995.) We conclude that defendants’ conduct does not, as a matter of law, constitute a violation of Penal Code section 278.5, and shall grant relief.

In reviewing an order denying a motion to set aside an information on the ground of insufficiency of the evidence, we may not substitute our judgment for that of the magistrate as to the weight of the evidence or the credibility of witnesses. Every legitimate inference must be drawn in favor of the information, and as long as there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it, the prosecution must be allowed to proceed. (See

Rideout

v.

Superior Court

(1967) 67 Cal.2d 471, 474 [62 Cal.Rptr. 581, 432 P.2d 197].) However, where there is no evidence at the preliminary hearing of an essential element of the offense, dismissal is required.

(Garabedian

v.

Superior Court

(1963) 59 Cal.2d 124, 127 [28 Cal.Rptr. 318, 378 P.2d 590].) Such is the case here.

Since this matter was submitted at the preliminary hearing on a stipulated set of facts, there is no question of weighing the evidence. Insofar as they are relevant to the present petition, those facts are as follows. In September 1990, the Butte County Juvenile Court, in a dependency proceeding brought under Welfare and Institutions Code section 300, ordered the two minor children of defendants detained outside the family home. The minors were subsequently adjudged dependents of the juvenile court and, on October 19, 1990, dispositional orders were issued. Certain provisions included in each of those orders form the basis for the present charge, to wit: “7. The care,