Ghent

The principal question in this proceeding is whether allegations of “special circumstances” made in an accusatory pleading charging murder, and portending punishment by death as provided in section 190 and related sections of the Penal Code, may be challenged on a motion addressed to the pleading pursuant to section 995. The proceeding has reached this court (Division Four) during an unusual sequence in which another division issued an alternative writ in compliance with an order of the Supreme Court. The ensuing review has been additionally complicated by a procedural bar raised for the first time in the People’s return to the alternative writ. The full sequence calls for a chronological summary of the pertinent proceedings.

Procedural Sequence

Petitioner David Luther Ghent was initially charged by complaint with having committed a murder and several other felonies. A preliminary examination was conducted before a magistrate on two days in March, 1978. At its conclusion on March 10, petitioner was held to answer on all charges. A seven-count information was accordingly filed in respondent court on March 21.

Petitioner was charged in count one with having murdered…