People v. Miller

Opinion

DUNN, J. The People appeal from an order setting aside an information (Pen. Code, § 1238, subd. (a) (1)), granted on defendant’s motion made pursuant to Penal Code section 995. The information was in two counts charging defendant with (count I) possessing marijuana, a felony, in viola[223]tion of Health and Safety Code section 11530 and (count II) possessing marijuana for sale, a felony, in violation of Health and Safety Code section 11530.5.

The reporter’s transcript indicates the motion was made on the sole ground that defendant had been committed by the magistrate without reasonable and probable cause. To rule on the motion, the court read the transcript of the preliminary hearing, ruled that the contraband was seized as the result of an unlawful search and granted the motion. Defendant and the trial court relied to a great extent upon our holding in People v. Lingo (1970) 3 Cal.App.3d 661 [83 Cal.Rptr. 755], However, that case is thoroughly distinguishable, both procedurally and factually.

Procedurally, that case involved a superior court order suppressing evidence pursuant to Penal Code section 1538.5 and an order made thereafter dismissing the case pursuant to Penal Code section 1385. We affirmed that trial court. In the case now before us, the information was set aside under Penal Code section 995. No motion to suppress (Pen. Code, § 1538.5) was made or ruled upon. In the Lingo case we could look only to the facts as found by the superior court. In the present case, we look only to the facts as found by the magistrate, The superior court had no right to find contrary facts; it was limited to determining whether the magistrate’s findings were supported by the evidence and any inferences reasonably deducible therefrom. (People v. Superior Court (Kusano) (1969) 276 Cal.App.2d 581, 585 [81 Cal.Rptr. 42].) As we said in People v. Reynolds (1969) 276 Cal.App.2d 825, 827 [84 Cal.Rptr. 331]: “When, under section 995, the superior court reviews the decision of the magistrate that reasonable or sufficient cause exists to hold a defendant to answer to a charge, the court may not substitute its judgment as to the weight of the evidence presented, nor may it judge the credibility of the witnesses who testified. ... If there is some evidence to support the information, the superior court is not permitted to inquire into its sufficiency.” And in People v. Martinez (1970) 3 Cal.App.3d 886, 889 [83 Cal.Rptr. 914] the court stated: “For purposes of a section 995 motion, all inferences favorable to the magistrate’s ruling at the preliminary hearing must be drawn.” From the foregoing it is clear that a superior court acts under section 995 only as a court of review in determining the sufficiency of the evidence received by a magistrate.