Tupper v. Superior Court ( 1958 )

McCOMB, J.

This is a petition for a writ of prohibition to restrain the superior court from proceeding to trial on an information charging petitioner, hereinafter called “defendant,” with being an accessory to a felony (Pen. Code, § 32).

At the preliminary examination, the following evidence was adduced: Michael Powers, age 16, stole three hub caps from a parked car. He sold them to Edward Roche, age 17, after telling him that they were stolen. Defendant was a clerk in an automobile supply store. Roche told him of the origin of the hub caps and asked him to make out a bill of sale purporting to cover them. Defendant gave Roche a receipt indicating that the latter had purchased the hub caps from the store. He placed the notation “for estimate only” on the store’s copy.

Cross-examination of the two juvenile witnesses revealed that they had given to a deputy sheriff written statements concerning their respective roles in the theft and in obtaining the receipt. At the preliminary examination, defendant moved that he be shown these statements, but his motion was denied, and he was held to answer. Thereafter, another information was filed charging defendant with contributing to the delinquency of a minor (Welf. & Inst. Code, § 702). Before the superior court, defendant moved to set aside the information, but this motion, likewise, was denied.

The sole question necessary for this court’s determination is: Where a commitment is not based entirely on incompetent evidence, will a writ of prohibition lie to review the ruling of the committing magistrate upon the admission or exclusion of evidence at the preliminary examination?

No. The following rules are pertinent:

1. Prohibition does not lie to review rulings of the magistrate on the admissibility of evidence at the preliminary hearing unless the commitment is based entirely on incompetent evidence. (Mitchell v. Superior Court, 50 Cal.2d 827, 829 [3] [330 P.2d 48]; cf. Rogers v. Superior Court, 46 Cal. 2d 3, 7 [2] et seq. [291 P.2d 929].)

2. It will not be presumed that the superior court will erroneously deny defendant the opportunity to see the witnesses’ statements at the time of trial (Mitchell v. Superior Court, supra, at p. 830 [4]), or on proper motion before trial (Powell v. Superior Court, 48 Cal.2d 704, 707-709 [312 P.2d 698]).

Applying the foregoing rules to the facts in the present case, it is evident that the committing magistrate had jurisdiction over both the crime and the person of defendant. It is likewise apparent that there was substantial evidence to support the committing magistrate’s finding that there was probable cause to believe defendant was guilty of the offense with which he was charged. Therefore, under rule 1, supra, since the commitment was not based entirely on incompetent evidence, the writ of prohibition does not lie to review the ruling of the magistrate on a procedural matter.

The value to defendant of seeing the statements made by the witnesses is that to do so might enable him to impeach their testimony at the trial. However, under rule 2, supra, it will be presumed that the superior court will not erroneously deny defendant the opportunity to see the statements at the time of trial and that they will therefore be available to him for impeachment purposes at that time. Consequently, defendant has failed to show any reason for the issuance of a writ of prohibition.

The alternative writ is discharged, and the peremptory writ is denied.

Gibson, C. J., Shenk, J., Traynor, J., and Spence, J., concurred.

Schauer, J., concurred in the judgment.