Eitzen

The People have appealed (Pen. Code, § 1238, subd. (a)(1)) from a decision granting the defendant's motion to dismiss pursuant to Penal Code section 995, four counts of a six-count amended information. It is concluded that the three issues raised by the parties must be resolved as follows: the prosecutor was not precluded from charging four counts of grand theft because the magistrate failed to hold the defendant to answer three of those charges; the uncontradicted evidence produced at the preliminary hearing was sufficient to show reasonable and probable cause to hold the defendant to answer the four charges in the amended information which were dismissed; and the evidence does not show as a matter of law that the charges were barred by the statute of limitations. The dismissal of the four counts must be reversed.

At the preliminary examination it was stipulated that the defendant, Joseph Eitzen, was employed as a deputy sheriff in the San Mateo County sheriff's office from July 16, 1962, until September 23, 1969, and that during the period from his first appointment until March 1, 1968, he was assigned badge number 254, and thereafter until he terminated his…

*256 Opinion

The People have appealed (Pen. Code, § 1238, subd. (a)(1)) from a decision granting the defendant’s motion to dismiss pursuant to Penal Code section 995, four counts of a six-count amended information. It is concluded that the three issues raised by the parties must be resolved as follows: the prosecutor was not precluded from charging four counts of grand theft because the magistrate failed to hold the defendant to answer three of those charges; the uncontradicted evidence produced at the preliminary hearing'was sufficient to show reasonable and probable cause to hold the defendant to answer the four charges in the amended information which were dismissed; and the evidence does not show as a matter of law that the charges were barred by the statute of limitations. The dismissal of the four counts must be reversed.

At the preliminary examination it was stipulated that the defendant, Joseph Eitzen, was employed as a deputy sheriff in the San Mateo County sheriff’s office from July 16, 1962, until September 23, 1969, and that during the period from his first appointment until March 1, 1968, he was assigned badge number 254, and thereafter until he terminated his…

By petition for rehearing defendant asserts confusion as to whether the prosecution must prové when the crime was discovered, and, if so, whether such proof must be made at the preliminary hearing. His confusion is engendered by a failure to appreciate the issue posed at this stage of the proceedings. As pointed out in the opinion, the answer to both questions is in the affirmative. The proof, however, insofar as it indicates ..defendant’s status as an embezzling employee sustains the implied finding of the magistrate that the crime was not discovered until after April 8, 1970, or in October 1972.

Respondent’s petition for a hearing by the Supreme Court was denied January 16, 1975.