Tolbert

In this appeal, we decide that the trial court erred in taking judicial notice in aid of defendant’s demurrer of the magistrate’s factual finding at defendant’s preliminary hearing.

An amended information filed in the San Joaquin Superior Court charged defendant in count I with kidnapping (Pen. Code, § 207), in count II with forcible rape (Pen. Code, § 261, subd. (2)), in counts III and IV with forcible oral copulation (Pen. Code, § 288a, subd. (c)), and in count V with rape by foreign object (Pen. Code, § 289). In connection with the forcible rape and oral copulation counts, the information also alleged as enhancements that defendant kidnapped the victim for the purpose of committing those sexual offenses. (Pen. Code, § 667.8.)

Defendant demurred to the amended information on grounds that (1) the court has no jurisdiction over any of the charged offenses (Pen. Code, § 1004, subd. 1) and (2) the allegations contained in the first four counts do not conform to the provisions of Penal Code sections 950, 951, and 952 (Pen. Code, § 1004, subd. 2). On the basis of a factual finding made by the magistrate at defendant’s preliminary examination, the court sustained the…