Guerin v. Superior Court of L.A. Cty.

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.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.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.

Turning to the claim that petitioner was committed without reasonable or probable cause, the question is whether ttie 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].)

[82]Two cases have held that if the petition is not filed within the 15-day period prescribed by section 999a, it must be denied (Bernstein v. Superior Court, 45 Cal.2d 774, 775 [291 P.2d 29]; Curtis v. Superior Court, 100 Cal.App.2d 589 [224 P.2d 65].) In Bernstein v. Superior Court, supra, the Court of Appeal had actually issued an alternative writ. The cause was then transferred to the Supreme Court which discharged the alternative writ and denied the peremptory writ.

Neither Bernstein nor Curtis moots the problem whether the time limit of section 999a may be extended for good cause or whether section 999a is the exclusive method of attacking an information on the ground that the petitioner has been committed without reasonable or probable cause.