12 Cal.3d 865, 30314, Burnett v. Superior Court

Docket Nº:30314
Citation:12 Cal.3d 865, 117 Cal.Rptr. 556, 528 P.2d 372
Opinion Judge:[10] Wright
Party Name:Burnett v. Superior Court
Attorney:[6] Frank L. Williams, Jr., Public Defender, James R. Goff and Michael Ian Garey, Deputy Public Defenders, for Petitioner. [7] No appearance for Respondent. [8] Cecil Hicks, District Attorney, Michael R. Capizzi, Assistant District Attorney General, Oretta D. Sears, William Bedsworth and Ronald C...
Case Date:November 26, 1974
Court:Supreme Court of California

Page 865

12 Cal.3d 865

117 Cal.Rptr. 556, 528 P.2d 372

Allen Dean BURNETT, Petitioner,



The PEOPLE, Real Party in Interest.

L.A. 30314.

Supreme Court of California

Nov. 26, 1974.

In Bank

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[Copyrighted Material Omitted]

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Frank L. Williams, Jr., Public Defender, James R. Goff and Michael Ian Garey, Deputy Public Defenders, for petitioner.

No appearance for respondent.

Cecil Hicks, Dist. Atty., Michael R. Capizzi, Asst. Atty. Gen., Oretta D. Sears, William Bedsworth and Ronald Cordova, Deputy Dist. Attys., for real party in interest.

WRIGHT, Chief Justice.

Allen Dean Burnett seeks mandate to compel the respondent superior court to rule on petitioner's motion to set aside an information (Pen.Code, § 995) charging petitioner with two violations of Penal Code section 211 (robbery). 1 Petitioner contends that the respondent exceeded the power vested in it when, for the purpose of receiving further testimony, it declined to rule on the motion and remanded the cause to the municipal court wherein the magistrate had held petitioner to answer at the preliminary hearing (§ 872). We agree with petitioner's contention and issue a peremptory writ commanding the respondent court either to deny the motion or, if it finds on the record that petitioner was committed without reasonable or probable cause, to grant the motion and proceed according to law. (§§ 995, 997, 998.)

Evidence adduced at the preliminary hearing discloses that a man approached a retail ice cream store on November 23, 1973, at approximately 5 p.m., told the clerk at the counter, Becky Basgall, a 16-year-old girl,

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that 'it was a stick-up,' and ordered her to open the cash register. His demands were ignored although he threatened to 'blow off' her head. At the preliminary hearing she testified as to the man's clothing, physical dimensions and race, but she was otherwise unable to describe his appearance because of poor lighting conditions in the late afternoon. She stated on direct examination that earlier that day when she came to the court house she had recognized a man in the hallway as her assailant. On cross-examination she stated that petitioner was the man she saw in the hallway but that she was 'not sure' he was the one who had attempted to rob her.

A 12-year-old witness, Lynn Curry, testified concerning a second incident which had occurred on the same day as the attempted robbery of the ice cream store. She stated that about 5 p.m. she and her mother were putting groceries in her mother's car in the parking lot of a market. She noticed a man approaching rapidly. He snatched a purse from her mother and ran off with it. The witness described the man as to race and clothing and such descriptions were similar to those testified to by Becky particularly with reference to a distinctive hat worn on each occasion by the assailant. Lynn also testified that earlier on the day of the preliminary examination she had seen in the hallway of the court house the man who had taken her mother's purse. She identified petitioner as that man although she admitted some confusion as to the man's height.

At the hearing on the motion to set aside the information the People were represented by two deputy district attorneys, one of whom indicated that the People would move to dismiss as 'We are going to have to refile the matter.' The deputies stated that an attempt had been made to 'work out a remand,' but that the 'defense was not amenable to that.' It appears that the deputies then reconsidered the People's position and asked the court's permission to withdraw the motion to dismiss. One deputy suggested that the court should rule on the defense motion to set aside the information; the other argued that the court had discretion to remand the cause to the magistrate in lieu of making an order setting aside the information if, in the court's opinion, the receipt of further testimony at a reconvened preliminary hearing would avoid the necessity of refiling a complaint and initiating a new prosecution.

Defense counsel objected to the suggested remanding procedure and requested a ruling on the motion to set aside the information, pointing out that the People had filed nothing in opposition to and otherwise had not opposed the motion. The court ruled: 'Your motion for the ruling on

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995 will be denied. The motion of the District Attorney to remand is over your objection and is granted.' 2

Petitioner relies on sections 995 and 997 in support of his contention that the respondent court could only grant or deny his motion to set aside the information. Section 995 provides, inter alia, that the information 'must be set aside' when a defendant had not been committed upon reasonable or probable cause, and section 997 provides, inter alia, that the motion 'must be heard at the time it is made, unless for cause the court postpones the hearing to another time.'

We consider first the legal effect of the proceedings had on the motion to set aside the information. The record compels a conclusion that there was, in fact, no hearing on the motion as the court never addressed itself to the question whether petitioner had been committed upon reasonable or probable cause, ignoring...

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